REPORTS 


O  F 


ADJUDGED     IN     THE 

SUPERIOR    COURT 

O  I      T 

State   of  Connecticut . 

FROM  THE  YE  A  R   1 785,  TO   MAY   1788; 


Vv"  I  T  H     SO  M  E 


DETERMINATIONS 


IN     THE 


SUPREME   COURT  OF   ERRORS. 


BY  EPHRAIM  KIRBY,  ESQUIRE. 


LITCHFIELD:   PRINTED  BY  COLLIER  ^  ADANi 

M,DCC,LXXXJX, 


zttohc, 
')\\  S«a   tm»Vw\nM  ^««ai 


,\»  tavis  •  • 


PREFACE. 

H  E  uncertainty  and  contradiction  attending  the  ju~ 
/       dicial  decijiuns  in  thisjlate,  have  long  been  fubjecls  of 
complaint. — The  Jource  of  this   complaint  is   cafily 
difcovered- — When  our  ancestors  emigrated  hete,  they  brought 
with  them  the  notions  of  jurisprudence  which  prevailed  in  the 
county  from  whtnce  they  came. — The  riches,  luxury,  and  ex- 
tenjive  commerce  of  that  country,  contra/led  with  the  equal 
distribution  of  property,  Jimplicity  of  manners,  and  agricuU 
tural  habits  and  employments  of  this,    rendered  a  deviation 
from  the  Englifli  laws,  in  many  inftancest  highly  necejjary. 
This  was  ob/erved — and  the  intricate  and  prolix  practice  of 
the  Englifh  courts  was  rejected,  and  a  mode  of  practice  more 
Jimple,  and  better  accommodated  to  an  eajy  andfpeedy  admi- 

nijlratijn  of  jujlice,  adopted. Our  courts  werejtill  in  a 

Jiate  of  embarraj/ment,  fenfible  that  the  common  law  of  Eng~ 
land,  "  though  a  highly  improved  fyjlem,"  was  not  fully  op~  • 
plicable  to  our  Jituation  ;  but  no  provifion  being  made  to 
preferve  and  publijh  proper  hi/lories  of  their  adjudications^ 
every  attempt  of  the  Judges,  to  run  the  line  of  dijlincliont 
between  what  was  applicable  and  what  not,  proved  abortive  : 
For  the  principles  of  their  decifions  were  foon  forgot,  or  mif- 
under/hod,  or  erroneovjly  reported  from  memory. — Hence 
aro/e  a  confujion  in  the  determinations  of  cur  courts ; — the 
rules  of  property  became  uncertain,  and  litigation  propor- 
tionably  encreafed. 

In  this  fituation,  fome  legiflative  exertion  was  found  ne- 
c.effary  ;  and  in  the  year  1785  an  acl  paj/ed,  requiring  the 
Judges  of  the  Superior  Court,  to  render  written  reafcnsfor 
their  decijions,  in  cafes  where  the  pleadings  clofed  in  an  iffite 
at  law. — This  was  a  great  advance  toward  improvement ; 
Jlill  it  left  the  bujinefi  of  reformation  but  half  performed  : — 
For  the  arguments  of  the  Judges,  without  a  hijlory  of  the 
whole  cafe,  would  not  always  be  intelligible ;  and  they  would 

become 


2012307 


iv  PREFACE. 

become  known  to  but  few  perfons  ;  and  being  written  on  loofe 
papers,  wtre  expo  fid  to  be  mi/laid,  and  / 0071  fink  into  total 
oblivion. — Befides,  very  many  important  matters  are  deter- 
mined on  motio-iis  of  various  -kinds;  where  no  written  reafons 
are  rendered,  and  fo  are.  liable  to  be  forever  lojl. 

Hence  it  became  obvious  to  every  one,  that,  ftioull  hijlorits 
of  important  caufes  be  carefully  taken  and  published,  in  which 
.the  -whole  proce/s  fhoidd  appear,  Jhowing  the  true  grounds 
and  principles   of  the  dtcijion,    it  -would  in  time  produce  a 
permanent  fyjlem  of  common  law. — But  the  court  being  Am- 
bulatory through  thejlate,  the  undertaking  would  be  atiend- 
wth  conjiderable  expencc  and  interruption  of  other  bufi- 
,   without  any  profpefl  of  private  advantage, ;  therefore, 
no  gentleman  of  the  profejfionjeemcd  willing  to  makefo  great 
a  facrijice. — /  had  entered  upon  this  bufinefs  in  a  partial 
manner,  for  private  ufe  ;  which  came  to  the  knowledge  offe- 
veral  gentlemen  of  dijlinclion. — /  zua?  urged  to  pur/ue  it 
more  extenfively  ; — and  being  perfuaded  that  an  attempt  of 
the  kind  (hozoever  imperfcB)  might  be  made  in. feme,  degree 
Jubfervient    to    the  great  object,    I  compiled   the  Volume  of 
Reports  which  is  now  prefcnted  to  the  public.— -Could  any 
{ffort  of  mine  induce  government  to  provide  for  the  prc/tcit- 
tion^of  fo  nccejfary  a  work  by  a  more,  able  hand,   my  zui/kes 
would  be  gratified,  and  my  labour  in  accompli/fling  this, 
amply  repaid. 

In  thefe  Reports,  I  have  endeavoured  to  throw  the  matter 
into  as  fmall  a  tcmpafs  a?  was  confident  with  a  right  under- 

Jlanding  of  the  cafe  : — Therefore,  I  have  notjlated  the  plead" 
ings  or  arguments  of  caunfcl  further  than  zuas  necejfary  to 
bring  up  the.  points  relied  on,  except  fomefew  injlances  which 

feemed  to  require  a  more  lengthy  detail  of  argument. — As 
the  work  is  designed  for  general  ufe  in  this  jtate,  I  have 
avoided  technical  terms  and  phrofa  as  much  as  p^jjibl-f*  that 
it  might  be  intelligible  to  all  clajjes  of  men. — Some  cafes  are 
reported  which  are  merely  local,  and  have  reference  to  the 
peculiar  practice  of  this  ftatc  •  thefe  may  appear  unimpor- 
tant to  readers  in  other  jlatcs ;  but  they  were  neccj/ary  to 
the  great  object  of  the  work. 

I  am 


PREFACE.  \ 

I  am  fenfible  that  this  production  is  introduced  to  the. 
world  under  circum/lances  very  unfavourable  to  its  reputa- 
lion, — Qut  however  diffident  I  might  bet  under  other  cir- 
cumjtantesy  I  fed  an  honeft  confidence  in  this  attempt  to  ad- 
vance the  common  intereji  of  my  fellow-citizens  ;• — and'thait 
fo  obvious  are  the  difficulties  -which  miijl  occur  in  almojl  every 
jldge  of  the  bu]incf$>    that  to  detail  them  in  a  preface  would 
be  offering  an  infult  to  the  under/landing  of  my  rtadcrs. — 
The  candid  and  generous,   if  they  read  theft  Report,^  will 
doubtlefs  find  frequent  occajion  to  draw  into  exercifc  thofe 
excellent  virtues ;  and  as  to  readers  of  an  oppojitt  difycjition, 
I  have  neither  wjhts  or  fears  concerning  them. — Jf  anyone 
Jhould  experience  difagreeable  fenfations,  from  the  inelegance 
of  this  performance,    let  him  reft  ajfured  he  cannot  more 
Jititerely  regret  its  faults  than  I  dv< 


HAVING  perufed  Mr.  KIRBY'S   "  Reports  of 
"  Cafes  adjudged  in  the  Superior  Court,  from 
"  the  Year  1785  to  May,    1788,"    it  appears  to  us 
that  the  Cafes  are  truly  reported. 

RICHARD  LAV/, 
EL1PHALET  DYBR, 
ROGER  SHERMAN, 
WILLIAM  PiTKIN, 
OLIVER  ELLSWORTH. 


AN 


ALPHABETICAL    TABLE 


OF   THE 


f 


NAMES   OF   THE   CASES. 


A-  Pagt 

L    DAMS  v.  Cleaveland  30' 

\   Adams  v.  Kellogg  195 

and  43# 

Ainfworth,  &c    v.  Allen  145 

Allen,  Sec.  v.  Hoyt  22  • 

Anonimous  89 

Apthrop  v.  Backus  407 

Avery  v.  Wetmore  4$ 

Avery  v.  Kinfman  354 

B. 

Babcock  v.  Janes  361 

Backus  v.  Cleaveland  36 

Backus,  &c*  v.  Dennifon  421 

Bacon  v.  Fitch  373 

Bacon  v.  Taylor  368 

Barker,  &c.  v.  Wilford  232 

Barnard  v.  Norton  193 
Beach  v.  Adminiitrators  of  Hall 

235 

Beekman,  &c.  vc  Tomlinfon    291 

Beebe  v.'TrafFord  215 

Beers  v.  Strong  12 
Beers,  &c.  v.  .Strong  and  Wife  19 

Benedict  v.  Brownfon  70 

Bill  v.  Scotc  62 

Bellows  v.  Williams,  &c,.  166 

B'iftlop  v.  Drake,  &c.  37  8. 

Bpftwick  v.  Hawley  290 

Boftwick  v.  Nickelion  65 

Bradley,  &c.  v.  Camp   '  77 

Bradley  v    Hitchcock    '  23- 

Bradley,  &c.  v.  Blodget  22 

Brinley  v.  Avery    ,  25 
Broom,  ^c,  v,  Jennings,  S^c.  392, 

Frown  v.' Lord                      ;.  ?°9 

fiael  v.  Me  teal  f  40, 

ffutkley  v.  Efderkin  &  BifiVl  i  88 

Bulfcley  v.  Richards  203 

Bioniee  v.  Bunce  137 

Burrows  v.  Fitch  113 

Bugler  v,  Scoye!  352 


C.  Pagg 

Garter  v.  Bellamy  "        7.91 

Cak  v.  Caie 

Champion  v.  Mudrfbrd,  &c. 
Chapman  v.  Alien 
Chapman  &  Griggs  v.  Wclli  133 
CfiappeJ,  fee.  v.  Brewtter 
Church  ^.Bellamy 
Church  v.  the  inhabitants  of  Nor 
wich  i  ^.o 

Church  v.  Thomfon  98 

Clap  v.  Xitjckwood,  &c.  100 

Clark  v.  County  of"  Litchfieldjig 
Clark  v.  Mofej  143 

Clark  v.  Bray  237' 

Cove  v.  Buii  1^.9 

Coit  v.  Fitch  254. 

Coit  v.  Geer  269 

Comes  v.  Prior  39^ 

Cooley  v.  Sanford  103 


D. 

Dauchy  v.  Smith,  &c. 
Deming  v.  Norton 
Deming  v.  IVlaifh 
Dennilon  v.  Raymond 
Dorr  v.  Chapman 


,  Eidridge  v.  Lane,  &c. 
|  Eno  v    Cornifh 
Eno  v.  Roberts 


'Fanning, 
Fellows  v 


ico 

397 
424 
274; 
20: 


75 
296 

393 


Fitch  v.  Hall 


<f.  v.  Cuit 
Carpenter 


Fitch  v.  Hunting^n 
Fitch  v.  Hides&c. 
Fitcli  v    Lovelaid 
Fleming  y   Reynolds 
Ffiflbie  v.'  Butler 


ri 

..-.38- 
258 
38o 

3*7: 


NAMES   OF  THE    CASES. 


G. 

Gallup  v   Dermifon 
Gilbert  v.  Marcy 
Gilbert  v.  Rider 
Gold's  Cafe 
Grant  v.  Jackfon 
Guftin  v.  Brattle 

H. 

Hall  v.  Crandall 

HaHey  v.  Mott 

Hamlin  v.  Farr.h 

Hamlin  v.  Fitch 

Hart  v.  Bull. 

Hart  v.  Smith 

Harris  and  Wife  v.  Thomas 

liawley  v.  Caflle,  &c. 

Henlliavv  v.  Coe,  &c. 

Huiman,  &c.  v.  Stiles 

Hobby  v.  Firtch  &  Knapp 

Holmes  v.  B-iawn 

ad  &  Agard  v.  Wright 

Hubbard,&c.  v.  Manning, &c.  256 

"Jungerforu  v.^Thomfon  393 

luntington  v.  Jones  33 

iu»tington,&c.  v.  Carpenter  45 
iuotington  v.  Champiin          166 
• 

r. 

Jarvis  v.  Rathburn 
Johnion  v.  Foot,  &c. 


402 
277 

174 
260 

396 
127 
267 
218 
50 
10 
14 
1 
3 


220 

283 


K. 


Kellogg  v.  Wilhams  316 

Kibbe  v.  Kibbe  119 

Kilbourn  v.  Waterous,  &C.  424 

Kimball  v.  Cady  41 

Kiffam,  &c.  y.  Burral  3^0 


L. 

Lankton  v.  Scott 
Lawrence  v.  Kit'gman 
Leavenfworth  v.  Phtlps 

Lothrop  v.  Ben  net 

.v  zvr 

M. 

M'Clellan  v.  Morris 
M'Curdy  v.  Mather 
M'Donald,  &.  .  v.  Fifter,  &'c. 
M  Donald,  A>c.  v.  t.each 
Mack  v,  Parfons,  ^c, 


MS 

273 

72 
•»5S 


Marks  v.  Johnfon  Page  228 

Marith  v    SiCele  454 

May  and  Wife  v.  Webfe  286 

•Mead  v.  Cogglhall  17 

Merrils  v.  Adams  247 

Mills  y.  fiifhop  89 

Mills  v.^ifliup'&  "V^etmore  4 

Minor  v.  Cook  157 

Minor  v.  ErviogV  Execgtors  158 

Mortimer  v.  Catdwel!,  &c.  .5.3 

Mouhhrop  v.  Bennet  351 

Mumford  v.  Ayery  i6j 
Msmicrd  v.  Wright,  &c, 


i\. 

Nichols  v.  Hi.'her 
Nrcole  v.  Mumford 
Nofthrop  v.  Brufh,  &C. 
Nott  v.  V/eUes 
Noyce  v.  Hunti-ngtoa 


i  on  A 

219 

276. 

12 


;  Olcfatt, 


O 
v.  Graham,  & 


P. 

Page  v.  Camp 

!  Palmer  v.  Seymour 
11    i  « 

Paiker  v.  A  very 

Parker  v.  Avery 
Parks  v,  Morgan 
Peck  v.  Goodwin 
Peck  v.  Jones 
Penis,  &c.  v.  Warren 
Petus  v.  Dixon 
Phe!p>.  y.  Sanford        *?t 
Phelps  v.  Phelps 
Phelps  v.  Swan,  &c. 
Phenix  v.  Prindle 
Place  v.  Lvon 
r'owerf  V-  Liliie 
Punier  ion  v.  Saaw 

r 

1> 

Randall,  Sec.  v.  York,  8?C. 
|  Richards  v.  Way    . 

rs  v.  H •.•mlT.-d;  &c. 

&  Rufft  1  v    Brown 
Rulfv.  Wilion 


•j 

»35 

353" 

353 

'&? 


426 
179- 
3*3 
3  4 
478 
207 

.  404 
160 
150 


269 
44 


36* 


. 

Scott  and  Wife,  in  Error        36: 


NAMES   OF    THE   GASES. 


Pagt  270 
563 


Scott  v.  Scott 
Scott  v.  Scripture 

Sholes  v.  Stoddard  163 

Snow,  &c.  v.  Antrim  174 

South-Farms  v.  Beckwith  91 

State  v.  Enos  21 

State  v.  Stutfpn  52 

State  v.  Green  87 

State  v.  Lockwood  106 

State  v.  Burrows  209 

State  v.  Phelps  28.? 

State  v.  Thomfon  345- 

Sternr  v.  Spalding  I    7 

Stoddard  v.  Bird  65 

Storer  v.  Hinkley,  &C.  147 

Storrs  v.  Wetmore  203 

Strong's  Cafe  34. 

Strong  v.  Barlow  3  6 

Suffrein,  &c.  v.  Prindle  112 

Sumner  v.  Lymaa  241 

Swan  v.  Butler  276 

Symfbury  Cafe  444 

T. 

Taylor,  &c.  v.  -Geary,  &c.      313 

Thomfon  v.  Church  212 


Thomfon  v.  Wales,  &c.    Page  35 
Tweedy  v.  Brufh  13 

Tyler  v.  Cook  301 


W. 

Waddell  v.  Shaw,  &c. 
Waldo  v.  Mumford 
Wadfworth  v.  Sanford 
Webb  v.  May  and  Wife 
Welles  and  Wife,  v.  Olcott 
Welles  v.  Fowkr 
Wetmore  v.  Woodbridge 
Whiting  &  Frifbie  v.  Jewell 
Wickham  v.  Wateimuti 
Wight  v.  Mott,  &c. 
Wilford,  &c.  v.  Grant 
Williams  v.  Whit  more 
Williams  v.  Leeds 
Wi  liarns  v.  Miller  &  Joyce 
Wilfon,  &c.  v.  Hinkley,  cvc. 
Witter  v.  Brewiler 
Woodbridge  v.  Ray: 
Woodruff  v.  Whittle  fey 
Woofter,  &c.  v.  Pr-j-fons 
Woofter  v.  Parfons 
Woofter  v.  Simons 


280 
311 
456 
151 
118 
236 
164 


12 


249 
2~8 
189 
jf  9 


27 

no 

89 


C   A   S  £   S 

ARGUED  AND  DETERMINED 

IN    THE 

SUPERIOR  COURT 


COUNTY  O/LITCHFIELD,  Feb.  Term,  1786. 

RICHARD  LAW,  Efq.  Chief  Jujlicc> 
ELIPHALET  DYER,  Efq,       ~ 
ROGER  SHERMAN,'£/fi'. 

WlLLIAMPl«I»,JE/f. 

OLIVER  ELLSWORTH,  Efq. 


WHITING  and  FRISBIE  againft  JEWEL." 

IN  this  cafe  depofitions  were  offered  by  the 
defendant,  which  were  taken  in  the  com-  taken*  ouT  of 
monwealth  of  Maffachufetts,  more  than  twenty  Jj115  f!ate',nP" 
miles  diftant  from  the  plaintiffs'  refidence,  but  JJCn°io  the 
within  ten  miles  of  their  known  agent  and  at-  adverfe  p-™- 

.  ,  r    i  i      •  -r      i  ty,  or  to  hi* 

torney,  neither  01  them  being  notified  or  pre-  known  agc«e 
fent  at  the  caption.  "SSK. 

It  was  objetled,  that  thefe  depofitions  were  miles  of  the 
not  fo  taken  as  to  come  within  the  fpirit  of  the  ifp[£n'paa  "^ 
itatute  allowing  affidavits  to  be  made  out  of  himfeif  ' 
court;  —  which  is,  that,  "  Forafmuch  as  it  is 
*(  neceffary  that  witneffes  in  civil  caufes  be 
cc  fworn  out  of  court,  when  by  reafon  of  their 


S°ing  to  fea,  living  more  than  twenty  miles  he  ?]?a'lbs 

t/j-n.          notified. 

"  diftant 


a  COUNTY  OF  LITCHFIELD,  FEB.  TERM. 

^Tggf     "  diftant  from  the  place  where  the  caufe  is  to 
*=  r<  be  tried,  age,  ficknefs  or  bodily  infirmity, 

Whiting     "  they  are  rendered  incapable  of  travet,  and  of 

F^fb'       "  aPPcarin§  at  court. To  the  intent,  there- 

avainlt      "  f°re>  tnat  all  witneffcs  may  impartially  and 
jewel.      '*  indifferently  teftify  their  certain  knowledge, 
"  and  the  whole  truth  in  the  caufe  they  are  to 
«*  fpeak  to;  therefore, 

"  Be  it  enatfed,  &c. — That  for  either  of  the 
cf  reafons  aforefaid,  and  not  otherwife,  every 
"  Afliftant  or  Juftice  of  the  Peace  may  take 
•'  affidavits  out  of  court;  fo  as  a  notification, 
"  with  reafonable  time,  be  firft  made  out  and 
"  delivered  to  the  adverfe  party,  (if  within,;, 
<{  twenty  miles  of  the  place)  or  .left  at  the  place 
*'  of  his  dwelling,  or  ufual  abode,  to  be  prefent 
"  at  the  time  of-  taking  fuch  affidavit,. "if  he 
"  think  fit." 

BY  THE  COURT. In  taking  depofitions 

within  this  ftate,  the  ftatute  requires  notice  to 
the  adverfe  party,  if  within  twenty  miles :  As 
to  thofe  taken  out  of  the  ftate,  which  the  ftatute 
in  ftri6lnefs  does  not  extend  to,  and. which  can 
only  be  admitted  on  the  ground  of  their  being 
fo  taken  as  to  come  fully  within  the  equity  of  the 
ftatute;  there  ought  to  be  notice  to  the  adverfe 
party  or  to  his  known  agent  or  attorney,  if  ei-  . 
ther  are  within  twenty  miles  of  the  place  of 
caption;  which  not  having  been  given  in  this 
cafe  the  depolition  is  not  admiflible. 

jfudge  SHERMAN,  dijfknting. The  adverfe 

party  in  this  cafe  lived  more  than  twenty  miles 
from  the  place  of  caption,  and  the  ftatute  does 
not  in  any  cafe  require  notice  to  be  given  to  an 
agent  or  attorney. 


COUNTY  OF-LITCHMELD,  FEB.  TERM.- 

rfsi: 

HORSFORD  and  AGARD  again/I  WRIGHT. 
/Mien  on  the  covenant  of  [elfin  in  a  deed  of  bargain 

mi  Vi^CT  »   /•  /          **     *>b   j  ^ 

'•  £'?m  /#/<?. 


J5v  LAW,  Chief  Juftice. 

S  *s       *J     J 

IN  aftions  on  the  covenant  of  warranty,  the  i«  an 
conftant  rule  of  this  court,  has  been,  to  a£-  JantoL ..,.,,, 
certain  damages,  by  the  value  of  the  land,  at  the  contained  in 
time  of  eviction,  though  the  Britijh  rule  is  to  ga"  &  faa^ 
give  the  confiderationof  the  deed. — The  diver-  ^e  rule  °.f 
fity  in  this  refpect,  between  the  Britijh  practice  th^onfid^r- 
and  ours,  is  undoubtedly  founded  in  the  perma-  ^:io,n  °f the 

iri'ij  ij  i    <**e"»  bu- on 

nent  worth  or  their  lands,  as  an  old  country,  and  the  covenant 
the  increafing  worth  of  ours,  as  a  new  country.  ^^*"^y0\ 
— And  it  is  fuppofed  that  the  purchafer  goes  on,  the  land  at^ 
improves  and  makes  the  land  better  till  he  is 
evicted. — But  query,  whether  this  reafoning 
will  apply  to  an  aftion  brought  on  the  covenant 
of  feifm ;  for  in  that  cafe  the  purchafer  does  not 
wait  till  he  is  evi&ed,  but  brings  his  aftion  im-. 
mediately  upon  difcovery  that  his  title  is  de- 
fective; and  it  is  prefumed  he  will  immediately 
acquaint  himfelf  with  the  flrength  of  his  title. 

The  jury  computed  the  damages  by  the  latter 
rule,  and  returned  a  verdi&  which  was  accepted 
by  the  whole  court. 


COUNTY  OF  LITCHFIELD,  FEB.  TXRM. 

1786. 

MILLS  again/I  BISHOP  and  WZTMORE* 


T 


I1! IS  was  an  attachment  in  which  both  de- 
fendants were  defcribed  as  inhabitants  of 
the  town  of  Litchfield.     The  officer  made  re- 
habiuncs  of    turn  that  he  had   attached  the  eftate  of  John 
Bijhop,  one  of  the  defendants,  and  had  left  with 
him  a  true  and  attefted  copy  of  the  writ,  &c. 
and  that  the  other  defendant  was  out  of  the  ftate. 
£;hc^meof       The  defendants,  pleaded  in  abatement,  that 
the  writ  had  never  been  legally  ferved,  for,  by 
the  officer's  return,  no-  fervice  had  been  made 
upon  Wetmorey  one  of  the  defendants. 

The  plaintiff  replied,  that  the  defendant, 
Weimore,  after  the  date  of  the  writ,  and  before 
the  fervice,  removed  out  of  this  ftate  into  Nova- 
Scotia,  a  province  in  America-,  fubjetl  to  die- 
king  of  Great-Britain ;  therefore,  the  law  re- 
quired no  fervice  to  be  made  on  him,  but  that 
fervice  on  the  other  defendant  was  fufncient  to 
fupport  the  procefs. 

The  defendants  demurred  fpecially,  and  for 
caufc  alledged,  that  the  plaintiff,  having  in  her 
writ  defcribed  both  of  the  defendants  as  inhabi- 
tants of  the  town  of  Litchfield,  me  is-  therefore 
cftopped  from  pleading  any  new  matter,  repug- 
nant to  that  defcription. 

Mr.  Tracy  and  Mr.  Kirby,  for  the  defendants, 
contended  that  the  officer  was  bound  ftrictly  to 
purfue  the  direction  given  in  his  precept; — 
•which  was,  to  make  fervice  on  each  of  the  de- 
fendants, by  attaching  their  perfohs,  or  eRate, 
and  leaving  attefted  copies  with  each- of  them,  - 
or  at  their  laft  ufual  place  of  abode  within  this 
ftate. — The  ftatute  referred,to  in  the  replication, 
is,  "  That  in  aclions  on  joint  fecuriti-js,  or  con- 

"  tra&s, 


COUNTY  OF  LITCHFIELD,  FEB.  TERM.  5 

*{  trafts,  when  all  the  defendants  are  not  inhabi-     ^86." 
"  tants  of  this  ftate,  the  fervice  of  the  procefs     ===== 
*'  oi)  fuch  of  the  defendants  as  are  inhabitants       Mills 
«  oftKis  ftate  (if  any)  fliall  be  fufficient 'notice     gjj^   ' 
<*  to  maintain  the  fuit  againft  all  the  defendants.        anj 
"  And  if  any  fuch  defendant  on  whom  the  pro-   Wetmore. 
"  cefs  was  not  ferved  is  aggrieved,  by  the  judg- 
*'  ment,  he  may  be  relieved  by  audita  querela." 
. — This  ftatute  does  not  extend  to  any  fuit  where 
the  defendants  are  not  in  the  writ  defcribed  as 
belonging  out   of  this   ftate,    and  an  oppofite 
conftru6tion  would  introduce  inconfiftency  into- 
the  record. 

Mr.  Canfield  and  Mr.  Reeve,  for  the  plaintiff,, 
urged  that  it  appeared  from  the  pleadings,  the 
defendant,  Wetmore,  who  had  not  been  ferved 
with  the  procefs,  was  not  an  inhabitant  of  this 
ftate  at  the  time  of  fervice ;  therefore  this  cafe 
is  clearly  within  the  reafon  of  the  ftatute. — That 
under  fuch  circumftances,  it  avails  nothing  to 
leave  a  copy  at  the  laft  ufual  place  of  abode, 
becaufe  notice  of  the  fuit  is  not  obtained  by  it — 
That  thefe  matters  coming  up  in  the  courfe  of 
the  pleading3>  places  it  on  the  fame  footing  as 
if  expreffed  in  the  body  of  the  declaration,  be- 
caufe it  becomes  equally  a  part  of  the  record, 
and  makes  the  whole  procefs  confident. 

The  replication  adjudged  inefficient— and  The  <kfen- 
that  the  procefs  abate.  £*!*£  a- 

On   motion,    the  plaintiff  was   allowed  to  ba.ement  «> 

j     ,         ,    r     .      .      *•  r  ,  .  .          the  lame  pro- 

amend  the  deicnptive  part  of  her  writ,  Baying  ccfs  as  often 

coil. And,  «  the  Plan- 

i>  r>  *  r      •  r  '     i,      tia"  amends, 

jbY  THE  COURT -Motion  for  amend-  andthci.ia>.- 

ment  is  unnecetiary:    For  the  ftatutc,   v;hich  ^JS'^ 
enacts,  "  That  when  any  plea,  fliall  be  made  in  ienashcw:ii 
"  abatement  of  any  writ  or  procefs,  before  the  pay  thccolt* 
*  iupenor  or  county  court,  or  before  any  Af- 
f  fittant  or  Juftice  of  the  Peace,  that  if  it  be 

"ruled 


COUKTY  OF  LlTCttFlELD,  FEB.  TERM. 

ruled  in  favour  of  the  defendant/  the  plaintiff 
fhall  have  liberty  to  amend  that  dived  oaUis 
Mills  '  paying  down  to  the  defendant  his  cofts  to 
y.y*Jl  "  that  time;  and  then  .to  proceed  as  he  might 

a»SP      "•  have  done  if  no  fucb  ^efeft  had  been  i"  al- 

Wetraore.    l°ws  tne  plaintiff  always  to- amend  his  writ  on 

paying  coft  :  And  if  he  doth  not  cure  the  defect 

by  amendment,  the  defendant  may  again  plead 

in  abatement. 


LAWRENCE  againjl  KIKGMAN. 

Sc  "a  jlir-  HPHE  writ  was  direfted  to  an  indifferent  per- 
tice  vho^if-  A  fon  to.ferve  and  return,  a«d  the  authority 
d^ftedTo'an  ^§nm§  'li  nac*  infcrtcd'the  common  reafon,  'that 
indifferent  no  proper  officer  could  be  %had  without  great 
F«*e,Be£ntfe  expence."  The  defendant  pleaded  in  abate- 
rio  proper  of-  rnent,  that  the  writ  wTas  dated  a  fufficient  length 

feet  cnn  be         "  i      r  i          •  r    r  i 

had  without  or  tlmc  before  the  time  or  iervice  expired,  to 
greatexpenfe  have  been  ferved  by  a  proper  officer,  with  the 

andmconvc-  ^•  i  j    i  r  i 

nience,  is  ordinary  expence  only ;  ana  therefore  the  certi- 
«onciufive;  ficate  of  the  Tuftice  was  manifellly  a  miftake. 

and  the  court  jf  ,-„,  -Jr  r      , 

•win  not  en-       BYTH£COURT The  ccrtihcate  of   the 

T/rc'  uas^°  fisnins  authority  is  conclufive,  and  the  Court 

the  truth  of         s>         o  /  ' 

ftich  certifi-  will  never  enquire  into  the  truth  of  Inch  certi- 
cate*  ficate.*  This  point  has  been  frequently  ad- 

judged. 


*  The  ftatute  which  empow«rs  the  figning  authority  te 
direft  a  writ  to  an  indifferent  perfon,  is  as  follows— *'  And 
"  all  writs  and  proceffes  fhall  be  directed  to  the  Sheriff, 
"  his  deputy,  or  fome  conftable,  if  ftch  officer  can  be  had 
"  without  great  charge  or  inconvenience:  And  in  every 
"  cafe  wherein  the  authority  figning  a  writ  fhall  find  it  ne-^ 
ft  ceffary  to  dircft  the  fame  to  an  indifferent  perfon,  fuch 
*'  authority  fhall  infert  the  name  of  fuch  indifferent  perion 
«'  in  the  direction  of  the  writ,  and  the  reafon  of  fuch  di- 
"  reftion  ;  and  if  any  writ  be  other  wife  directed  it  fhall 
"  abate."  . 


COUNTY  OF  LITCHFIELD,  FEB.  TERM. 

judged.    The  laft  term  the  cafe  of  Allen  vs.  Jones 
came  up  by  appeal  on  pleas  of  abatement — It 
was  the  fame  queftion ;  and  the  Court  then  ex-  Mills,  fcfc. 
preffed  their  furprife  that  the  lower  courts  were 
unacquainted  with  this  point  in  practice,  which 
had  been  fo  fully  fettled. 
The  writ  eftablifhed* 


PAGE  againft  CAMP. 
Error  from  the  judgement  of  a  Juftice  of the  Peace. 

CAMP,  .the  defendant  in  error,  brought  his  Anaaionfor 
aclion  againft  Page,  the  plaintiff  in  error,  £CftS"te°c 
before  Juftice  0.  P.  ftating  in  his  declaration,  before  a  jirfi 
"  That  faid   Page   commenced   an   a&ion  of* 
"Book-debt  againft  him  before  fuftice  D.  W. 
<f  demanding  forty  millings,  &c. — to  which  he 
<€  pleaded  that  he  owed  nothing. — And* on  trial 
fc  of  faid  caufe,  the  only  articles  exhibited  by  wfaisTe' 
"  faid  Page  as'his  charge  on  book,  were  fundry 
:  cafks,  (to  wit)  hogfheads,  butts  and  barrels; 
*  '.which  he  teftified,  had  been  by  him  delivered 
[<  to  the  care  of  faid  Camp  fome  time  before, 
"  and  that  they  were  then  good  and  valuable, 
{  and  that  he  (faid  Page)  had  never  feen  or 
heard  of  them  after  the -delivery. — By  means 
of  which  teftimony  and  information  given  by 
faid  Page  on  faid  trial,  he  recovered  of  faid 
"  Camp  by  the  judgement  of  {aid   Juftice  W. 
"  twenty-^nine  millings  debt  and  eighteen  fhil- 

*  lings  coft. — That  the  teftimony  and  informa- 

*  tion  of  laid  Page  to  faid  Juftice,  refpeding 

*  faid  cafks,  was  falfe  ;  for  faid   cafks,  at  the 
'  time  of  faid  pretended  .delivery,  were  all  un- 

«f  found 


8 


1786. 

Page 

again;} 
Camp. 


COUNTY  OF  LITCHFIELD,  FEB.  TERM. 

*  found  and  of  very  little  value  ;  and  that  faid 
'  Page,  after  the  time  of  faid^ pretended  deli- 

"  very,  had  taken  them  all  out  of  the  cuftody 
'  of  faid  Camp  and  dtfpofcd  of  them ; — which 
<c  fafts  did  not  appear  fen  trial,  becaufe  they 
«c  were  then  unknown  to  faid  Camp  :  And  by 
ct  reafon  of  which  falfe  information  given  by 
*c  faid  Page  in  the  prernif  es,  faid  Camp  is  dam- 
•*'  nified,  &c. 

On  a  demurrer  to  this  declaration,  judge- 
ment was  rendered  for  the  plaintiff. 

Mr.  Tracy  and  Mr.  Kirby,  for  the  plaintiff  hi 
error,  took  two  exceptions  to  this  judgement — 
ift,  That  the  action  v/as  not  fuftainabk,  being 
brought  to  draw  again  into  controverfy,  facls 
Avhich  had  once  been  adjudged  by  a  court  of 

competent  and  final  jurifdiclion. 2nd,  That 

the  declaration  fuppofes  a  fraud  in  the  defend- 
ant, but  contains  no  allegation  of  fcience,  with- 
out which  no  a&ion  for  fraud  is  fuftainable. 

Mr.  Adams  and  Mr.  Reeve,  in  fupport  of  the 
judgement,  contended,  that  this  aclion  did  not 
•call  in  queftion  the  former  judgement  rendered 
by  Juftice  W.  but  is  in  nature  of  an  indebitatus 
affumpjit  to  recover  back  money  obtained  by 
fraud. — The  fafts  alledged  in  the  declaration 
amount  to  a  charge  of  perjury,  and  therefore 
contain  the  highell  poflible  charge  of  fraud. — 
They  relied  principally  on  the  cale  of  Mofes  and 
Macfarlan,  2  Burrow  1005. 
Judgement  reverfed. 

•  BY  THE  COURT An  a6lion  for  perjury  is 

not  fuftainable  by  a  {ingle  Minifter  of  Law,  un- 
lefs   for  damages  consequent  upon  conviclion; 
and  there   is   no   averment  in  the  declaration, 
of  fcience  in  the  party  who  tcftified,  that  his  tefti- 
mony  was  falfe,  without  which  it  could  not  be 
perjury. — But  the  aftion  was  brought  againft  a 
party  to  a  former  fuit  for  fupporting  facts  by  his 

own 


COUNT Y OF   LlTCHFIELD,  FEB.  TERM. 

own  testimony,  which  it  is  averred  would  be 

found    untrue    upon    new   evidence.' This 

would  have  been  a  ground  for  a  new  trial,  had       Page 
the  caufe  been  of  fufficient  magnitude  :  But  the     *£«»*/* 
law  doth  not  admit  of  new  trials  before  a  fuftice 
of  the  Peace,  nor  doth  it  fubjeft  the  decinons 
of  one  Juftice  of  the  Peace  to  the  re-examina- 
tion or  impeachment  of  another,  to  which,  an 
affirmance  of  the  judgement  in  this  cafe  would 
be  giving  countenance. 

The  authority  of  Macfarlan's  cafe,  cited  and 
relied  on  in  fupport  of  the  judgement,  does  not 
apply ;  the  cafes  materially  differ. — Indcbitatus 
aflumpfit  was  there  maintained  for  money  reco- 
vered before  a  Court  of  confcience ;  but  main- 
tained on  grounds  of  which  the  Court  of  con^ 
fcience  had  no  cognizance,  and  to  which  their 
decifion  had  no  relation. — In  this  cafe,  one 
Juftice  re-examines  the  truth  of  facls,  over  the 
head  of  another  Juftice,  of  fimilar  jurifdi&ion, 
and,  in  fact,  tries  the  fame  cafe,  a  fecond  time. 

DYER  and  PIT  KIN,  Judges,  dijjenting. — -In 
this  cafe  there  is  a  fraud  alledged  of  the  higheft 
kind — a  taking  of  property  by  wilful  falfe  fwear- 
ing  in  a  Court  of  Juitice. — Why,  then,  mould 
there  not  be  a  remedy,  and  why  is  not  this  a 
proper  one  ? — The  reafon,  that  the  public  will 
fuftain  an  inconvenience  by'fuch  a  practice, 
does  not  counterbalance  the  injury  that  will  be 
fuftained  by  leaving  fuch  injuftice  remedylefs; 
therefore,  the  fuit  ought  to  be  fupportcd  on 
principles  of  public  policy  as  well  as  public 
juftice. — The  objection  that  there  is  not  enough 
alledged  in  the  declaration,  is  not  a  lolid  one. 
We  rarely  alledge  more  in  any  declaration  for 
fraud.  The  facls  ftated  are  fuch,  that  the  fcience 
and  intention  of  the- defendant  muft  follow  as.  a 
neceffary  and  unavoidable  conclufion. 

It  is  faid  if  this  action  prevails,  it  will  eftab- 

,  B  lifti    - 


10  COUNTY  OF'LITCHFIELD,  FEB.  TERM. 


a  principle,  by  \vhich  one  Juftice  will  in- 
terfere  with  the  decifkms-  of  another.  That 
Page  confequence  will  not  follow.  The  firft  Juftice 
*&MK.  was  undoubtedly  right,  and  decided  upon  good 
reafons  :  The  fecond  may  adjudge  in  favour  of 
the  oppofite  party,  and  be  equally  right  ;  for 
the  queftion  before  the  laft  is  a  very  different 
one  from  the  former.  —  Here  is  no  interference 
of  jurifdi6tion  —  no  claming  of  judgements.  — 
This  aclion  is  well  fupported  by  the  general 
principles  of  common  law.  —  It  is  a  ftrong  cafe  ; 
for  it  is  agreed  there  is  no  remedy  for  the  inju- 
ry complained  of,  unlefs  the  prefent  aftion  be 
fupported  :  Therefore  we  cannot  fay  the  judge- 
ment is  erroneous* 


H  i  N  M  A  N  and  others,  Adminiftrators  of  Hi  N 
againji  STILES. 

ACTION  of  book-debt,  nil  debct  pleaded, 
and  verdict  for  the  plaintiff. The 

defendant  moved  in  arreft  of  judgement;  and 
for  caufe  alledged,  that  the.  account  produ- 
ced on  trial,  contained  a  charge  of  about  forty 
pounds  for  a  traft  of  land,  and  alfo  a  charge 
of  about  three  pounds  as  intereft  on  part  of  the 
account;  both  of  which  were  illegal  as  charges 
on  book,  and  both  were  allowed  by  the  jury> 
in  their  verdift.t 

Motion  over-ruled. 

BY 


f  N.B.  It  is  the  cuftom  of 'the  courts  in  the  ftate  of 
ConneSicut,  to  admit  motions  in  arreft,  which  are  comer- 
fant  about  facts,  dehors  the  record:  And  likewife,  by  the 
cullum  of  courts,  the  adverfe  party  is  not  obliged  to  make 
any  arnwer  either  by  way  of  traverfe  or  demur,  cr  ;  but  the 
court  proceed  to  enquire  the  truth  of  iuch  tatts,  unlefs  the 
oppofite  party  chooles  to 


COUNTY  OF  LITCHFIELD,  FEB.  TERM,  n 

BY  THE  COURT. On  examination  of  two     ^Tgg^ 

of  the  jurors,  it  appears  that  the  jury  found  the     =4=== 
fum  of  4O/.  credited  to  the   defendant,  which    Hinman 
was  equal  to  the  fum  charged  for  the  land,  and  and  others 
which  by  agreement  of  the  parties  was  to  be  in          ' 
payment  for  the  land ;  and  that  the  fmall  fums 
of  intereft  included  in  the  verdift,  were  not,  on 
trial,   objefted  to  by  the  defendant:  And  one 
witnefs  teftified,  that  they  were  charged  by  con- 
fent  of  the  defendant. — There  were  other  pro- 
per book-debt  articles  in  the  account,  to  a  large 
amount,  to  which  there  was  no  objection  ;-— 
and  the  balance  would  have  been  the  fame,  if 
the  land,  and  fum  credited  for  it,  had  not  been 
entered  on  the  book  : — Therefore  the  motion 
in  arreft  is  infufficient. 

Judge  DYER,  fliffenting.— — ~He  faid  that  the 
admiflion  of  fuch  charges  on  book,  fupported 
by  the  parties'  oath,  would  tend  to  introduce 
the  greateft  imaginable  confufion.  The  nature 
of  the  thing  rendered  the  idea  of  fuch  a  charge 
on  book  abfurd; — becaufe,  when  a  deed  of  land 
is  made  out,  the  grantor  acknowledges  the  con- 
fideration  to  be  paid  to  his  full  fatisfaftion 
at  the  time  of  the  grant ;  and  it  is  both  dan- 
gerous and  abfurd,  that  fo  high  an  evidence 
mould  be  fet  afide  by  the  parties'  own  oath, 


NOTT 


12  COUNTY  or  FAIKFIELDJ  FEB.  TERM. 

NOTT  again/I  WELLES. 
H*cogni-         A    CTION  of  debt  on  a  recognizance  for 

zances  for  /— \       p         •    i    v     -i          «-rii 

fpeciai  bail    *  •*•  ipecial  bail. — The  recognizance  was  ta- 

may  b?  ta-    ken  to  the  adverfe  party  and  not  to  the  county- 
ken  to  the  r  J  J 

party  for        treafurer. 

where  bene-       Qn  demurrer  to  the  declaration,  the  only  ex- 
fir  they  are  .  , 

intended.  ception  was,  that  the  recognizance  was  impro- 
perly taken,  for  that  it  ought  to  have  been  ta- 
ken to  the  county  treafurer  and  not  to  the  ad- 
verfe party. 

Declaration  adjudged  fufficient. 

BY  THE  COURT. The  recognizance  on 

•which  this  aclion  is  brought  was  well  taken, 
though  before  the  ftatute  directing  that  in  cer- 
tain cafes  recognizances  mail  be  taken  to  the 
adverfe  party. — -There  does  not  appear  any 
fufficient  reafon  why  bonds  of  recognizance 
might  not  ever  have  been  taken  to  the  perfon 
for  whofe  benefit  they  were  intended,  as  well 
as  other  bonds;  though  a  different  mode  of  ta- 
king them  has  been  praclifed,  and  may  yet 
alib  be  good,  in  cafes  where  there  is  no  ftatute 
direction. 


BEERS  againji  STRONG. 
CTION  on  the  cafe  for  thefe  words  : 


not  o  t»  ta-  ^     «  M 

Ken  in  the  J  j    r>         t 

milder  f-r.fc  "  was  through  the  mitigation  01  Beers  ana  Booth, 
^Tcj'S  "  her  fons.  -  My  wife  has  taken  a  falfe  oath— 
n.-m  "  fhe  is  a  poor  creature  —  and  if  it  had  not  been 
"  for  Andrew  Beers  and  David  Booth,  fhe  never 
"  would  have  done  it  ;  —  they  are  the  foundation 
"  of  the  quarrel.  -  My  wife's  children  have 
"  taken  her  before  'fguire  Hinman,  and  have 

"  made 


COUNTY  OF  FAIRFIELD,  FEB.  TERM. 

"  made  her  take  a  falfe  oath,  and  I  have  been 

"  and  taken  a  copy  of  it. David  Booth  and 

"  Andrew  Beers  took  my  wife  before  'fquire 
"  Hinmany  and  there  perfuaded  her  to  take  a 
"  falfe  oath,  and  I  don't  blame  her  fo  much  as 
"  I  do  Booth  and  Beers,  for  they  were  the  very 
"  means  of  it,  and  fhe  never  would  have  done 
"  it  but  for  them." 

General  iffue  pleaded,  and  verdici  for  the 
plaintiff. 

Mr.  Edwards  moved  in  arreft,  on  the  ground 
that  the  words  were  not  aelionable. 
Motion  over-ruled. 

BY  THE  COURT. The  words  laid,  natu- 
rally import  that  the  defendant's  wife  had  been 
guilty  of  perjury,  and  that  the  plaintiff,  by 
procuring  her  to  commit  the  crime,  had  been 
guilty  of  fubornation  of  perjury,  and  fo  are 

actionable. Words  are   not  to  be  taken  in  a 

milder  fenfe  than  they  have  in  common  accept- 
ation ;  efpecially  after  verdift,  which  afcertains 
that  they  were  fpoken  malicioufly,  and  with  in- 
tent to  defame. 


TWEEDY  again/I  BRUSH, 

A   CTION  of  trover,  general  iffue  pleaded,  TfajUrcrhe- 

£\.  and  verdia  for  the  defendant. The  g^r" 

plaintiff  moved  in  arreft  ;  and  for  caufe   ailed-  opinion  in  a 

ged,  that  two  of  the  jurors  who  tried  faid  caufe,  Sfbewl 

and  were  in  favour  of  faid  verdici;,  before  they  k"°wn  br 

•were  fworn  and  impannelled  to  try  the  fame,  aeafnft^ 

"had  given  their  opinion  in  favour  of  the  defen-  who™  the 

j  A      j      i  r-    f  •  opinion  ope- 

dant:  Ana  that  one  ot   laid  jurors,  after  the  rates;  u  is 
caufe  was  committed  to  them  for  their  confi-  J^r'r"^. 

i  •  i    i      r*  t  cauic  ior  a** 

aeration,  and  before  they  had  delivered  their  arreft. 

faid 


COUNTY  OF  FAIRTIELD,  FEB.  TERM. 


~i~86.    faid  verdict  to  the  Court,  gave  and  publifhed 

===     his  opinion  in  faid  caufe  to  other  perfons,  not 

Tweedy     of  the  jury,  and  oonverfed  with  them  refpeft- 

ing  faid  caufe. 

,  .     .        .  .  r         . 

Motion  in  arreil  fumcient. 

BY  THE  COURT  —  (Judge  SHERMAN  abjent) 
On  enquiry,  it  appears,  that  before  the  jury 
were  impannelled,  two  of  them  had  formed  and 
declared  opinions  in  favour  of  the  defendant, 
which  was  not  known  by  the  plaintiff:  There- 
.fo-re,  this,  cafe  has  not  had  a  fair  and  impar- 
tial trial. 


rnemoran- 


HOBBY  againjl  FINCH  and  KNAP  p. 

SfcmencJwt  'T1  HE  declaration  ftates,  that  the  Defendants 
lands  are  to  JL  were  adminiftrators  on  the  eftate  of  Caleb 
public  fuc-  Finch,  deceafed  ;  and  had  obtained  an  order 
with  from  the  court  of  probate  to  fell  at  public  ven- 
due  a  tracl:  of  land  belonging  to  faid  eftate,  arid 
tnat  by  a  number  of  advertifements,  they  gave 

.        '    r    .          .  .      .  r  r  .  _/    °   , 

notice  or  the  time  and  place  or  iale.  —  That  the 

ting  within    p]aintiff  attended  at  the  time  and  place  appoint- 
theftatuteot   *  .  fr 

frauds,  to     ed  by  the  defendants  m  their  advertilements, 

5eJd*toa  wnere  tne  conditions  of  the  fale  of  faid  land 
performance  were  publifhed  and  made  known  to  the  plaintiff 
-meha"a8rCI  "  ^7  l^e  defendants;  —  which  were,  that  the  land 
fo  fet  up  for  fale,  mould  be  ftruck  off  to  the 
higheft  bidder,  and  a  deed  figned  and  executed 
by  the  defendants  to  the  perfon  that  mould  pay 
to  them  the  greateft  price,  or  become  obligated 
to  them  in  the  largeft  fum  of  money,  (with  fure- 
ty  if  required)  for  faid  land  —  And  that  the 
plaintiff,  according  to  the  conditions  fo  made 
known,  did  bid  the  higheft  price  for  faid  land, 
and  became  obligated  with  furety  to  the  defen- 
dants in  the  greateft  fum  of  money  of  any  perfon 

prefent 


COUNTY  OF  FAUITIELD,  FEB.  TERM. 

prefent  at  the  time  where  faid  land  was  offered 
for   fale  as  aforefaid;  but  that  the  defendants 
have  never  executed  faid  deed  according  to  the     Hobby 
tenor  of  their  promife,  &c. 

Mr,  Sturgefs,  for  the  defendants,  pleaded  in  * 
bar,  that  the  agreement  mentioned  in  the  de- 
claration*, was  never  reduced  to  writing,  nor 
was  there  any  memorandum  or  note  thereof 
ever  made  in  writing  and  figned  by  the  defen- 
dants, or  any  other  perfon  by  them  thereunto 
lawfully  authorized,  which  is  made  neceffary 
by  the  ftatute  "  for  prevention  of  frauds  and 
pe-y -juries." 

Mr.  Davenport  and  Mr*-  Thompfon>  for  the 
plaintiff,  replied,  particularly  describing  the 
advertifements  and  conditions  of  fale,  figned  by 
the  defendants,  and  that  the  plaintiff  had  fully 
complied  with  the  terms  therein  expreffed;  and 
that  therefore  there  was  a  memorandum,  or 
note  made  in  writing,  of  the  agreement  men- 
tioned in  the  declaration* 

On  demurrer  to  the  replication,  the  only 
queftion  was,  whether  the  advertifements  and 
conditions  of  fale,  defcribed  in  the  pleadings, 
were  firch  a  memorandum  of  the  agreement  as 
would  fave  this  cafe  out  of  the  ftatute  of  frauds : 
By  which  it  is  ena6led,— "  That  no  fuit  in  law 
"  or  equity  fhall  be  brought  or  maintained  upon 
"  any  contract,  or  fale  of  lands,  tenements,  or 
"  hereditaments,  or  any  intereft  in  or  concern- 
"  ing  them ;  unlefs  the  agreement  upon  which 
"  fuch  aftion  ihall  be  brought,  orfome  .memo- 
"  randum  or  note  thereof  mall  be  made  in  y;ri- 
"  ting,  and  figned  by  the  party  ta>  be  charged 
tc  therewith,  or  fome  other  perfon  thereunto  by 
"  him  lawfully  authorized." 

Replication  adjudged  fufficient. 

BY  THE  COURT. The  advertifements  and 

.conditions  of  lale  let  forth  in  the  reply  of.  the 

plaintiff, 


ID 


Hobby 

figainjl 

Finch,  &c. 

§  1  Black- 
ftone's  Re- 
ports 599, 
fcimon  vs. 
Metivier. 
3.  Burr. 
1921.8.0. 
I.  Wilfon, 
n8~Wel- 
Jord  vs. 
Ecezlcy 
and  others. 


\  i  Str. 
426,  Sea- 
gocd  vs. 
Neale. 


COUNTY  OF  FAIRFIEI.!),  FEB.  TERM. 

plaintiff,  are  a  fufiicient  evidence,  within  the 
meaning  of  the  ftatute,  of  an  agreement  in  wri- 
ting figned  by  the  defendants,  to  fell  the  land  to 
the  higheft  bidder;^  and  as  the  plaintiff  was  the 
higheft  bidder,  and  tendered  fecurity  for  pay- 
ment, purfuant  to  the  written  agreement  of  the 
defendants,  he  has  a  right  of  acUon  againft 
them,  for  refilling  a  deed,  which,  by  their  a- 
grecment,  they  had  promifed  to  any  perfon, 

complying  with  their  terms. If  an  action  in 

fuch  caie  could  not  be  fuilained,  it  would  dif- 
courage  people  from  bidding  at  public  auction, 
and  render  ineffe6tual  the  laws  directing  fuch 
difpofition  of  eftates. 

Judge  E  L  L  s  w  o  R  T  H, — difftnting. 1  ft . 

Becaufe  the  declaration  is  ill.  It  doth  not  ap- 
pear that  the  plaintiff  paid  or  offered  to  pay,  or 
fee ure  the  fum  he  bid  for  the  land,  nor  that  he 
bid  any  fum  that  could  have  juftified  the  admi- 
niflrators  in  palling  a  deed:  Nor  is  there  any 
averment  of  the  value  of  the  land,  or  any  rule 

of  damages  given. 2d.   The  advertifement 

is  no  evidence  or  memorandum  of  the  agree- 
ment on  which  the  aftion  is  grounded^. — The 
agreement  was  made  at  the  time  the  land  was 
bid  off,  and  was  made  and  exprelfed  on  the  one 
part  by  the  bid  made  for  the  land,  and  on  the 
other  part  by  ftriking  it  off. — Here  the  minds 
of  the  parties  met,  and  the  fubftance  of  the  a- 
grecmcnt,  as  thus  exprelfed,  was,  that  the  plain- 
tiff mould  have  the  land  for  the  fum  he  had 
then  bid  for  it,  and  that  a  deed  mould  be  exe- 
cuted accordingly. The  advertifement  doth 

not  exprefs  this  agreement,  nor  either  part  of  it; 
nor  was  any  reference  had  to  the  advertifement 
in  forming  this  agreement,  farther,  than  as  to 
the  mode  of  payment. — That  this  fale  was  at 
public  auftion,  makes  no  difference. — It  is  as 
requifite  by  the  ftatute  that  public  fales  of  land 

mould 


COUNTY  OF  FAIRFIELD,  FEB.  TERM.  17 

fhould  be  guarded  as  private  ones ;  and  it  is  as 

eafy  to  be  done. — A  memorandum  of  the  fale 

might  be  taken  in  writing  from  the  vendor,  and  Hobby,  &c. 

would  hardly  be  refufed,  if  required  at  the  time 

of  the  fale  or  agreement. — I  think  the  ftatute 

extends  to  this  cafe,  and  that  it  has  not  been 

complied  with. 


MEAD  again/I  COGGSHALL. 

THIS  cafe  was  defaulted  and  heard  in  da-  Appeal  lies 
mages  at  the  Court  of  Common  Pleas. —  after  <*efr"tt 
After  damages  were  affefled,    the  plaintiff  mo- 
ved  for  an  appeal, — which  was  allowed. — At 
this  Court  the  defendant  pleaded  in  abatement 
of  the  appeal,  on  the  ground  that  no  appeal  can 
be  taken  after  a  default. 

But  it  was  held  by  the  Court,  that  the  appeal 
will  lay,  becaufe  there  was  a  hearing  in  the 
cafe,  which  brought  it  within  the  ftatute. 


C  FiTCIi 


i8  COUNTY  OF  NEW-HAVEN,  FIB.  TERM, 

1786. 

TITCH  againjl  HALL. 

ACTION  by  the  Sheriff  on  a  bail  bond. 
,.e The  defendant  pleaded,  that  on  the  firft 

ba?"i«o*l  day  °f  April,  A.  D.  1779,  while  the  aciion  was 
proved  only  pending  in  court,  and  before  final  judgement 
corcfs/cln-  vv^s  rendered,  the  defendant  did  tender  his  prin- 
not regularly  cipal  to  the  plaintiff  (he  then  being  Sheriff,  &c.) 
^ma"er1n  to  ^e  ta^en  ^nto  cuftody  in  difcharge  of  his 
pai*.  bond;  but  the  Sheriff  refufed  to  receive  him. 

. And  that  afterwards   (to  wit)  on  the  firit 

Tuefday  of  April,  1779,  while  the  aciion  was 
ftill  pending  againft  his  principal,  the  defendant 
did  deliver  him  up  in  open  court  in  difcharge 
of  his  bond,  and  requefted  to  be  difcharged 
therefrom ;  but  the  Court  neglefted  to  make 
any  record  thereof,  or  to  receive  him  into 
-cuftody. 

The  plaintiff  demurred  fpecially. ift.  Be- 

-caufe  t>f  duplicity 2d.  For  that  the  feveral 

matters  pleaded  were  infufficient. 

BY  THE  COURT. The  plea  in  bar  is  in- 
fufficient, not  on  the  ground  of  duplicity ;  for 
though  two  matters  are  plead,  they  are  not  fuf- 
ficient  matters :  Averments  immaterial  require 

j|  Croke      no  traverfe,  and  are  mere  furplufage. But 

Ja.  402.—  the  fault  is  in  pleading  a  furrender  of  the  prin- 
3.  Buls.  cipal  in  court  as  a  matter  in  pais,  and  not  a 

i9z,Auftm  matter  Of  record.  I — -Every  tranfaclion  in  a 
vs.  Monk  r  .  .  }  re 

— Hobart     court  oi    record,  pertaining  to  a  procels,  or 

cio—  which  the  furrender  of  the  principal  in  dif- 
i.  Levinz  charge  of  bail  is  one,  -regularly  becomes  a  mat- 

^ay"  ter   of   record,  and  muft  be  fliewn  by  record 
anond  50--  '  .  ' 

\ia.  A.  P.  only>  and  plead  accordingly. 

S.  A.  492,       Judge  DYER,   diffcnting* It  is  agreed, 

pi.  8. —  il-tf/t  the  producing  the  body  of  the  principal, 
fgF^Keb'  aiK^  delivering  him  up  in  court,  is  a  legal  fulfil-* 
~6it  8.0,'  mcnt 


COUNTY  OP  NEW-HAVEN.  FEB.  TERM. 

ment  of  the  condition  of  the  bail  bond,  and  is 
all  the  bail- can  be  obliged  to-  do.-r-It  is  highly 
proper  that  the  court  caufe  an  entry  to  be  made 
thereof,  but  it  is  what  is  not  in  the  power  of  the 
bail  to  enjoin  or  enforce. — There  is  no  pofitive 
law  which  requires  it,  or  decidedly  determines 
fuch  entry  to  be  the  only  evidence. — The  ad- 
mitting proof  of  the  fa£t  by  verbal  and  other 
teftimony,  does  not  contradiclt  or   oppofe  any 
pofitive  record,  but  goes  only  to  prove  a  ma- 
terial fa£t  where  the  record  is  wholly  filent. — 
The  bail  exprefsly  avers  in  his  plea,  that  the 
principal  was  delivered  up  to  the  court  in  dif- 
charge  of  his   bond ;  and  the  law  makes  the 
ftrongeft  conftru&ion  in  favour  of  the  bail. — I 
am  therefore  of  opinion  the  plea  in  bar  is  fuf- 
ficient.     When  the  bail  has  done   all  >in  his 
power,  and  what  the  law  requires,  ought  he  to- 
be  fubjefted  to  pay  over  what  was  only  the  jujl 
debt  of  the  principal,  meerly  through  the  neg- 
Ie6l  of  a  clerk? 

Note.    This  judgement  was  afterwards  affirm- 
ed in  the  Supreme  Court  of  Errors. 


19 


Fitch 

againj} 

Hall. 


BEERS  and  Others  again/I  STRONG  and  Wife. 
In  Chancery. 

THIS  was  a  petition  againft  tenants  in  dower, 
to  compel  repairs  to  be  made,  agreeably 
to  ftatute.  The  heirs  and  widow  of  Abel  Gunn, 
deceafed,  made  partition  of  his  eftate,  by  mu- 
tual agreement,  under  their  hands  and  feals ; 
by  which,  a  certain  traft  of  land  and  buildings, 

C  2  were 


Statute   pro- 
vilions  for 
compelling 
tenants  in 
dower  to  re- 
pair, extends 
only,  to  dow- 
er afligned 
in  the  man' 
ner  the  tta- 
tute  pre- 
fer; bes. 


2O  COUNTY  or  NEW-HAVEN,  FEB.  TERM. 


apportioned  to  the  widow  as  dower  ;  and 
===4  the  buildings  had  not  been  kept  in  tenantable 
Beers,  &c.  repair. 

Ifron^  On  demurrer» 

THE  WHOLE  COURT  HELD  —  That  the  Statute 

provi/ion  for  compelling  tenants  in  dower  to  re- 
pair, extends  only  to  dower  ajfigned  in  the  manner 
the  Statute  prefcribes*  —  Here  has  been  no  fuch 
affignraent;  nor  is  there  any  dower.  —  The  wife 
of  {aid  Strong,  if  flie  has  any  thing  in  the  lands 
in  queftion,  has  it  by  PURCHASE,  and  without 
other  limitations  or  conditions  than  fuch  as  are 
fpecially  provided  in  the  grantt  or  fettlement  of 
the  heirs  under  which  me  holds. 

Note.  This  judgement  was  afterwards  affirm- 
ed in  the  Supreme  Court  of  Errors. 


- 

*    < 


STATE 


« 


<f 


COUNTY  OF  HARTFORD,  MARCH  TERM.  21 

STAT«  O/"CONNECTICUT  againft  ELISHA£NTOS. 

INFORMATION  at  common  law  for  utter-  The  fta-u« 
ing  and  putting  off  a  counterfeit  note,  in  ons'ext""^ 
imitation  of  the  notes  iffued  by  the  hon.  Robert  <°  offences 
Morris,   Efq.  fuperintendant  of  finance. — The  be  punched 
crime  alledged  to  have  been  committed  more  b>' ,"ne»  or 
than  one  year  before  the  filing  of  the  infoim-  the  dflcmi- 
ation.  on  of  the 

Mr.  Edwards,  counfel  for  the  prifoner,  plead- 
ed the  Statute  of  limitations  ;  by  which  it  is 
enafted; — "  That  no  perfon  mail  be  indi&ed,  foie'to'an 
profecuted,  informed  againft,  complained  of,  a/'^mi 
or  compelled  to  anfwer  before  any  Court,  Af-  law  for 
fiftantor  Juftice  of  the  Peace  within  this  ftate, 
"  for  the  breach  of  any  penal  law,  or  for  other  made  in 

tt  -  r j  i  r  i  r         imitation   ot 

1  crime  or  miidemeanor,  by  reafon  whereof  a  the  notes  iffu. 
"forfeiture  belongs  to  any  public  treafury,  un-  cd  Dy  hef«- 

«  i     r      i        •      i-r>  .     r        Jy    .  perinendnnc 

lels  the  indictment,  preientment,  information,  of  finance. 
"  or  complaint  be  made  and  exhibited  within 
"  one  year  after  the  offence  is  committed. 

"  And  every  fuch  indictment,  prefentment, 
cc  information  and  complaint,  that  is  not  made 
"  and  exhibited,  as  aforefaid,  within  the  time 
"  limitted  for  the  fame  as  aforefaid — mail  be 
*'  void  and  of  none  effect. 

"  Provided  always,  That  this  aft  fhall  not  ex- 
"  tend  to  any  capital  offence ;  nor  to  any  crime 
"  that  may  concern  lofs  of  member,  or  banifti- 
"  ment,  or  any  treachery  againft  this  ftate,  &c." 

Mr.  Root,  attorney  for  the  ftate,  demurred. — 
And  on  argument,  the  plea  was  adjudged  fuffi- 
cient ; — for, 

BY  THE  COURT. The  offence  is  within 

the  ftatute  of  limitations,  being  punifhable  by 
fine,  or  without,  at  the  difcretion  of  the  Court. 
The  conftruftion  of  this  ftatute  has  been  liberal, 

extending 


22  COUNTY  OF  HARTFORD,  FEB.  TERM. 


1785.     extending  it  to  offences  which  might  be  punifh- 
ed  by  fine,  or  without,  at  the  difcretion  of  the 


State  of     Court ;  as  fornication,  riots,  &c.     The  excep- 

^°n«/»/?'    ^ons  *n  t^ie  a^  ^°  not  extend  to  thi5  cafe;  for, 

Enos.       by  ftatute,   no  kind  of  forgery  is  punifhed  with 

fuch  feverity  as  lofs  of  limb;  and  at  common 

law,  punifhments  are  never  more  fevere  than  by 

ftatute. 

Judge  DYER,  dijjenting — ift.  Becaufe  there 
is  no  precedent,  extending  the  ftatute  of  limita- 
tion, to  cafes  of  this  defcription,  but  the  contrary. 

2d.  The  ftatute  referred  to,  which  requires 
the  information  to  be  within  one  year,  is,  "  for 
"  the  breach  of  any  penal  law,  or  for  other 
"  crime  or  mifdemeanor,  by  reafon  whereof  a 
"  forfeiture  belongs  to  any  public  treafury,  &c.' 
— On  this  information,  there  is  no  forfeiture  to 
any  public  treafury  enjoined  by  any  pofitive 
l,aw ;  therefore  the  cafe  is  not  within  the  ftatute. 

3d.  Crimes,  which  may  be  punifhed  by  lofs 
of  member,  banifhment,  &c.  as  well  as  theft  of 
more  than  ten  millings  value,  are  exprefsly  ex- 
cepted  by  the  ftatute.  If  the  perfon  mould  be 
convi&ed  on  this  information,  the  law  admits  of 
a  punifhment,  which  concerns  lofs  of  member  or 
banifhment ;  therefore,  this  cafe  was  not  within 
the  ftatute. 


BRADLEY  and  Others  againjl  BLODGET. 
fold,       A    CTION  on  the  cafe,  ftating  that  the  plain- 
eddby°deed,~  -f\-    tiffs  purchafed  of  the  defendant  a  certain 
dcfcnbing  '  tract  of  land  fuppofed  to  contain  fixty  acres,  de- 

the  metes, 

bounds, 

lines  and  fuppofed  quantity  j  a  verbal  promife  at  the  fame  time,  to  pay  the  grante 

for  all  that  it  shall  fall  ihgit  on  ra6iif»r»cion,  adjudged  to  bs  within  the  ftatute 

ef  fuuds  and  perjury. 


COUNTY  OF  HARTFORD,  MARCH  TERM.  23 

fcribed  by  certain  metes,  bounds  and  lines. — 
That,  at  the  time  of  fale  and  delivery  of  the     — - — '-. 
deed,  the  defendant  promifed,  if  on  aftual  men-  Bradly,  &c 
furation  faid  trad  of  land  Ihould  fall  fhort  of          ' 
fixty  acres,  he  would  fatisfy  the  plaintiffs  for  the 
deficiency  ;  and  afterwards,  by  an  accurate  fur- 
vey  and  menfuration,  there  proved  to  be  but 
forty  acres. 

The  defendant  demurred  fpecially,  and  for 
caufe  affigned — 

1.  That  the  plaintiffs  might  have  their  reme- 
dy on  the  covenants  contained  in  the  deed. 

2.  That  it  appears  from  the  declaration,  the 
plaintiffs  took  a  deed  of  faid  land,  defcribing  the 
quantity  and  bounds,  and  no  parole  contract  or 
agreement,  beyond  that  contained  in  the  deed, 
is  admiffible  in  law. 

3.  The  declaration  mows,  that  the  plaintiffs 
faw  faid  land  and  received  a  deed,  giving  a  rule 
to  find  the  quantity ;  of  confequence,  there  was 
no  deception. 

4.  That  the  promife  declared  upon,  is  a  parole 
promife,  concerning  the  fale  of  lands,  and  there- 
fore within  the  ftatute  of  frauds  and  perjuries. 

The  plaintiffs  joined  in  demurrer,  and  the 
declaration  was  adjudged  infufficient. 

By  LAW,  Chief  Jujlice,  DYER  and  P i  T K  i  NT, 

Judges. This  declaration  is  infufficient  on 

two  grounds : — 

i.  Becaufe  the  plaintiffs  might  have  known 
the  quantity  of  land  before  they  paki  the  mo- 
ney, it  being  particularly  defcribed  by  metes 
and  bounds  ;  and  no  pretence  but  that  the  title 
well  paffcd,  or  that  the  lines  therein  defcribed 
fell  fhort,  or  that  the  angles  are  mifdefcribed. — 
And  as  the  deed  contained  in  it  demonftrative 
evidence  of  its  contents,  any  parole  contracl, 
contradicting  the  fame,  or  relative  thereto,  is 

admiffible. 

2.  Becaufe 


24  COUNTY  OF  HARTFORD,  MARCH  TERM. 


17867  2-  Becaufe  it  does  not  appear  that  the  agree- 
merit  was  reduced  to  writing,  and  therefore  void 
by  the  ftatute  of  frauds  and  perjuries;  as  the  de- 


- 

Blodgei.  tenant  in  his  fpecial  demurrer,  points  out  the 
contract,  as  coming  within  the  ftatute,  on  the 
ground  of  being  a  parole  contract,  and  the  plain- 
tiffs not  replying  over  and  alledging  it  to  be 
otherwife,  it  muft  be  prefumed,  the  promife  was 
not  committed  to  writing. 

Judge  SHERMAN,  diffenting.  -  The  agree- 
ment is  not  within  the  ftatute  of  frauds  and  per- 
juries, it  being  a  promife  only  to  pay  back  a  fum 
of  money,  overpaid  for  the  land,  if,  upon  aclual 
menfuration,  it  fell  fhort  of  its  fuppofed  con- 
tents. —  And  the  agreement  appears  to  be  legal 
and  reafonable,  for  the  price  of  the  land  was,  by 
agreement  of  the  parties,  to  be  in  proportion  to 
the  contents  which  could  not  be  known,  but  by 
its  being  furveyed  by  fome  flulful  furveyor, 
which  the  parties  might  well  poftpone  to  fome 
convenient  time  ;  and  if,  when  afcertained,  it 
appeared  that  more  than  the  price  agreed  on 
had  been  paid,  the  furplus  ought  to  be  refund- 
ed. —  And  if  the  promife  had  been  within  the 
ftatute  of  frauds  and  perjuries,  and  in  writing,  it 
need  not  have  been  fet  forth  in  the  declaration, 
but  might  have  been  given  in  evidence  on  the 
general  iffue  ;  and  no  advantage  can  be  taken  of 
the  omiflion  on  a  general  or  fpecial  demurrer. 
.  -  Raym.  450,  451  —  2  Jones  t  158.  S.  C.  — 
i  Bat.  Abr.  75  —  Buller**  Nifi  Prius>  275. 


An  a&ion  is 
not  mair.- 


COUNT?  or  HARTFORD,  MARCH  TEAM.  25 

BRINLEY  againjl  AVERY. 

THIS  was  an  action  on  the  cafe,  brought  by 
George  Brinley,  Efq.  Commiffary  General  tajnabie  in 
of  the  Britifh  province  of  Nova  Scotia,  founded  [^0.3 
on  a  written  agreement.  made  in  a  fo- 

The  defendant  pleaded  in  abatement,  that  the  [^between 
plaintiff  is  an  alien,  born  in  the  dominions  of  the  ^tzce^nt°rf 
king  of  Great-Britain,  an  inhabitant  of  Halifax,  and  to  be 
in  faid  dominions,  a  fubject  within  the  allegi-  **" 

ance  of  faid  king,  and  without  the  allegiance  of 
the  ftate   of  Connecticut,    and  of  the  United 
States  of  America  j  and  banimed  and  profcribed 
by  the  commonwealth  of  Maffachufetts,  and  at 
the  time  of  the  date  of  faid  contract  and  fuppo- 
fed  breach  thereof,  both  the  plaintiff  and  de- 
fendant were  inhabitants  of  faid  Halifax,  fubjects 
of  faid  king  of  Great-Britain ;  both  under  the: 
allegiance  of  faid  king,  and  owing  no  allegiance 
to  this  ftate,  or  to  faid  United  States.     And  the 
defendant  at  faid  date,  and  for  more  than  twenty 
five  years  before  the  fame  was,  and  had  been,  an 
inhabitant  of  faid  Nova-Scotia,  and  fubject  of 
faid  king.     And  that  faid  Halifax,  at  the  time 
of  the  date  of  faid  contract  was,  and  ever  had 
been,  governed  by  the  laws  and  ftatutes  of  the 
kingdom  of  Great-Britain,  and  not  by  the  laws 
and  ftatutes  of  the  ftate  of  Connecticut ;  and  faid 
contra6t,  and  all  tranfactions  between  the  plain- 
tiff and  defendant,  ought  to  be  tried  and  deter- 
mined in  and  by  the  courts  of  faid  king  of  Great- 
Britain,  according  to  the  laws,  ftatutes  and  ufa- 
ges  of  faid  kingdom,  and  not  in   and  by  any 
court  in  the  ftate  of  Connecticut,  or  according 
to  the  laws  and  ufages  of  faid  ftate.     And  faid 
contract  was  made  at  faid  Halifax,  and  to  have 
been  there  performed,  during  faid  time  when 

D  the 


COUNTY  OF  HARTFORD,  MARCH  TERM. 


Plaintiff  and  defendant  were  inhabitants  of 
faid  Halifax. 

2.  That  by  the  law  of  nations,  no  fuch  aftion 
A  very.      can  ^e  Supported,  nor  can  the  fubjects  of  this 

ftate,  by  the  laws  of  England,  or  of  other  na- 
tions, maintain  any  action  againft  each  other  on 
any  contract  made,  or  for  any  injury  done,  with- 
in the  jurifdi&ion  of  faid  ftate,  in  any  court  in 
the  Britifh  dominions,  or  in  any  other  foreign 
court. 

3.  That  the  final  judgement  given  by  this 
court,  in  the  prefent  action,  would  be  no  bar  to 
the  plaintiff  in  commencing  and  profecuting  a 
fecond  aclion  for  the  fame  caufe,  matter  and 
thing,  in  any  of  the  courts  in  faid  province  of 
Nova-Scotia,  or  faid  kingdom  of  Great-Britain, 
nor  prevent  the  plaintiff  from  recovering  a  fe- 
cond judgement  thereon  againft  the  defendant, 
his  goods  and  eftate  yet  remaining  in  faid  Ha- 
lifax. 

Replication.  -  That  faid  king  and  king- 
'.  dom  of  Great-Britain,  to  whom  the  plaintiff  was, 
and  is  a  fubjeft,  and  owed  his  allegiance,  are, 
and  were  at  the  time  of  faid  contraft,  at  amity, 
and  in  league  with  this  ftate,  and  the  United 
States  of  America;  and  their  fubjefts  have 
right,  by  the  treaty  of  peace  between  faid  king 
cf  Great-Britain  and  the  United  States,  and  by 
the  laws  of  nations,  and  of  this  ftate,  to  main- 
tain aflions  in  the  courts  of  common  law  in  this 
flate,  for  the  recovery  of  their  dues,  againft  the 
citizens  of  this  ftate,  or  others  that  are  fubjefts 
of  the  king  and  kingdom  of  Great-Britain,  who 
may  come  to  refide  here,  and  take  up  their 
abode  in  this  ftate  with  their  property  and  effects, 
in  any  a£tion  that  is  perfonal  and  tranfitory.  — 
And  that  the  defendant  was  an  inhabitant  born, 
and  refided  a  long  time  in  this  ftate,  and  after 
many  years  abfence  therefrom,  at  faid  Halifax, 

he 


COUNTY  OF  HARTFORD,  MARCH  TERM.  27 

he  returned  into  faid  ftate  in  the  year  1785,  with  ^JTg^ 
his  property  and  effecls,  and  ever  fince  has  here  ===^ 
refided,  and  taken  up  his  abode  in  this  ftate.  and  Brinley 

* 

both  his  perfon  and  eftate  are  amenable  to  the 
laws  and  courts  of  the  fame. 

To  this  there  was  a  demurrer  and  joinder  ia 
demurrer; — and  the.  plea  in  abatement  ruled 
fufficient. 


WOOSTER  and  WOOSTER  again/I  PARSONS.- 

ERROR   from  the  city  court  in    Middle-,  b, 

town. The  defendant  in  error  brought  before  aiyC 

his  a&ion  on  a  promilfory  note,  dated  at  New-*  ">u.rt  of  ].rl 

r    T  o         L    r  i        tenor   and 

Haven  the  yth  day  or  June,  1784,  before  the  iim  red  \\\- 
city  court  in  Middletown,  and  obtained  judge-  th^dtciara- 
ment.by  default. Errors  affigned,.' 

1.  That  it  appears  by  the  records,  that  faid 
note  was  executed  before  the  city  of  Middle-  caVe 
town  was  incorporated,  and  before  the  granting 

the  charter  incorporating  the  fame  ; — faid  char- 
ter  of  incorporation  being  granted  by  the  Ge- 
neral AflTembly,  holden  at  Hartford  on  the  fe- 
cond  Thurfday  of  May,  1784  ;  which  Affembly 
was  fitting  at  the  time  when  faid  note  was  exe- 
cuted. 

2.  That  faid  note  was  not  executed  within  the 
limits  of  faid  city  of  Middletown,  but  in  the  town 
of  New-Haven  :  And  the  caufe  of  aftion  did 
not  arife  within  the  limits  of  the  city  of  Mid- 
dletown. 

3.  That  it  doth  not  appear  by  faid  record,  , 
that  faid  note  was  executed  in  faid  city  of  Mid- 
dletown, but  that  the  fame  was  executed  with- 
out the  limits  of  laid  city. 

D  2  The 


28 


Wcoft.&c. 
againft 
Parfons. 


COUNTY  or  HARTTOS.O,  MARCH 

The  defendant  in  error  demurred  fpecially, 
and  for  caufe  affigned,  that  f'aid  writ  contains  an 
alignment  of  errors  both  in  law  and  in  facl:, 
which  cannot  be  joined  in  one  writ  of  error: 
For,  it  is  affigned  for  error,  that  faid  note  was 
executed  before  the  incorporation  of  faid  city 
of  Middletown  ;  and  alfo  that  faid  note  was  not 
executed  within  the  limits  of  faid  city,  but  in  the 
town  of  New-Haven  :  Both  which  are  align- 
ments of  errors  in  fa£t,  not  appearing  on  the  re- 
cord, and  triable  only  by  itfues  in  fad.' And 

the  plaintiffs  further  affign,  that  it  does  not  ap- 
pear by  the  record,  that  faid  note  was  executed 
in  faid  city  of  Middletown,  but  that  the  fame 
was  executed  out  of  the  limits  of  faid  city. — 
Which  is  an  affignment  of  error  in  law,  and 
triable  only  by  ifTue  in  law.  N 

Second,  The  defendant  in  error,  by  protefta- 
tion  that  faid  faCts,  by  the  plaintiffs  in  error  af- 
figned, are  not  true,  faith,  that  faid  errors  in 
faci  contain  only  the  fubftance  of  a  plea  to  the 
jurifdi6tion  of  laid  city  court,  which  the  plain- 
tiffs in  error  ought  by  law  to  have  pleaded  and 
excepted  againft  before  faid  city  court,  and  ha- 
ving then  waved  the  fame,  they  cannot  by  law 
affign  faid  matters  in  error ; — and  that  faid  er- 
rors affigned  are  in  contradiction  of  the  record. 

Third,  That  faid  affignment  of  error  in  law, 
alledging  that  it  does  not  appear  by  faid  record 
that  faid  note  was  executed  in  faid  city  of  Mid- 
dletown, but  that  the  fame  was  executed  out  of 
the  limits  of  faid  city,  is  an  allegation  contrary 
to  faid  record,  and  cannot  by  law  be  affigned  in 
error. 

Fourth,  That  no  matter  or  thing,  in  faid  writ 
of  error  affigned,  is  fufficient  to  warrant  the  re- 
verfal  of  faid  judgement. 

On  argument  of  this  cafe,  by  Mr.  Parfons  and 
Mr.  Trumbull,  for  the  defendant  in  error,  and 

by 


COUNTY  OF  HARTFOIID,  MARCH  TERM. 

by  Mr.  Ingerfoll  and  Mr.  Chauncey  for  the  plain- 
tiS,  judgement  was  reverfed 

By  D  Y  E  R  ,  S  H  E  R  M  A  N  and  P  I  T  K  I  N  ,  JudgCS. 

i.   When  an  a&ion  is  brought  before  any 
court  of  limited  and  inferior  jurifdi&ion,  the 
declaration  ought  to  aver  exprefsly,  that  the 
caufe  of  aclion  arofe  within  the  jurifdiction  of 
the  court  ;§  and  the  place  fhould  be  particular- 
ly  alledged:  Neither  of  which  was  done  with 
fufficient  certainty  in  the  prefent  cafe.     The 
note  on  which,  £c.  is  alledged  to  have  been 
executed  in  the  city  aforefaid  ;  —  the  city  of  Nezu- 
Haven>  and  the  city  of  Middleto"wn>  having  been 
both  before  mentioned  —  therefore  uncertain  to 
whiffi  the  reference  was  intended.  —  (See  Coke  on 
Littleton^  20,  a.}  —  "  If  a  leafe  for  life  is  made 
"  to  A.  remainder  in  tail  to  B.  remainder  to  C. 
"  informa  prceditta,  the  remainder  to  C.  is  void 
"  for  uncertainty."t  -  This   author  makes  a  fzLd. 
diftin&ion  between  praditta,  and  fome  other  re-  ^*y™  °nd> 
lative  terms,  which  he  fuppofes  commonly  refer  judgment* 
to  the  1  aft  antecedent;  but  that  the  rule  admits  arreftedfor 
of  many  exceptions.*  —  If  fuch  an  uncertain  re-  a  like  UB- 
ference  would  render  a  grant  void,  which  would  certaintX« 
be  fupported,  if  by  any  reafonable  conftruclion  t  3  Salk. 
it  could  be  made  certain,  it  muft  a  fortiori  be  {99- 
fatal  to  a  declaration,  which  is  to  be  conftrued     * 
moft  ftrongly  againft  the  declarant.    If  the  note 
had  been  executed  in  the  city  of  Middletown, 
the  allegation  ought  to  have  been  "  in  the  city 
of  Middletown  qforefaidy  within  the  jurifdiftion 
of  the  f  aid  court." 

2.  The 


7~' 


*  The  reafon  of  the  diftinflion  is,  that  aforefaid,  may 
with  propriety  relate  to  any  term,  that  has  been  before  ufed 
in  the  fame  inftrument  or  writing,  however  remote  ;  but 
the  other  relative  terms  there  mentioned,  can  only  relate 
to  fome  word  in  the  fame  fent€nce. 


3°  COUNTY  OF  HARTFORD,  MARCH  TERM. 

2.  The  note  on  which,  &c.  is  dated  the  yth 
of  June,  1784,  and  the  feflion  of  the  legiflature 
at  wkich  l^e  ^aw  was  ena&ed,  for  incorporating 


Pzrfons.  l^e  c^y  °f  Middletown,  ended  the  nth  of  the 
fame  June,  as  appears  of  record  :  And,  there- 
fore, the  caufe  of  action  arofe  before  the  jurif- 
diction  of  the  city  of  Middletown  commenced  ; 
for  laws  in  this  ftate  are  not  in  force  till  the  end 
of  the  feflion  in  which  they  are  pafled,  unlefs  by 
fpecial  provifion  in  the  ftatute  ;  for  during  the 
whole  of  the  feflion,  they  are  fubject  to  altera- 
tion, or  to  be  totally  negatived  and  not  entered 
on  record  ;  whereas  after  the  end  of  the  feflion, 
they  become  matters  of  record,  and  cannot  be 
altered  or  repealed,  but  by  a  new  aft  pafled  and 
recorded  :  Nor  would  it  be  reafonable  that  peo- 
ple mould  be  affected  by  laws  before  they  are 
publifhed,  which  is  not  done  (except  in  fpecial 
inftances)  before  the  rifing  of  the  legiflature. 

3.  As  to  the  exception  in  the  defendants  plea, 
that  errors  in  law  and  errors  in  faff  are  joined  in 
the  writ  ;  the  plaintiffs  have  afligned  no  facts  in 
error,  upon  which  they  rely,  but  fuch  as  appear 
of  record  :  And  an  aflignment  of  errors  in  /#<#, 
not  properly  aflignable,  together  with  fufficient 
errors  in  law,  will  not  vitiate  the  writ. 

Therefore,  the  judgement  of  the  city  court 
was  reverfed. 

LAW,  Chief  Jujlicey  and  ELLSWORTH,  dijfent- 
ing.  -  As  to  the  firft  exception  in  error,  "  that 
"  the  plaintiff,  in  the  original  fuit,  has  not  al- 
"  ledged,  with  fufficient  certainty,  that  the  caufe 
*'  of  action  arofe  within  the  city  of  Middletown." 

The  averment  is,  that  "  the  note  was  execu- 
"  ted  within  the  city  qforcfaid."  And  the  city 
of  Middletown  was  the  next  antecedent.  And 
the  rule  in  pleadings,  as  in  grammar,  is,  that 
relation  muft  always  be  to  the  next  antecedent, 
unlefs  the  fenfe  hinders  ;  which  in  this  inftance 

cannot 


COUNTY  OF  HARTFORD,  MARCH  TERM.      t  31 

cannot  be  pretended.—  Hardrefs,  77—3.  Sal- 
fold,  199.  It  has  formerly  been  held  by  fome 
that  prcedittum  was  of  lefs  certain  relation  than  Wooft.  &c. 
idem ;  but  there  appears  n'o  reafon  for  the  dif- 
tinftion,  and  it  hath  not  been  kept  up.  And  in 
Rhodes  and  Coles  cafe,  2.  Lord  Raymond,  886, 
•which  turned  upon  the  reference  of  fradtSwto 
or  ajorefaidy  Chief  Jujlice  Holt  held  it  muft  be 
to  the  next  antecedent  j  and  the  cafe  was  final- 
ly adjudged  according  to  his  opinion.  Cer- 
tainty, to  common  intendment,  is  fufficient  in 
fupport  of  a  judgement;  for  femper  frejumiter 
pro  fententia. — And,  though  formerly  the  courts 
of  Weftminfter-hall  would  prefume  nothing  in 
favour  of  inferior  jurifdiftions,  or  the  regularity 
of  their  proceedings,  of  late  years  they  have 
prefumed  liberally  in  fupport  of  them. — i.  Ld. 
Raymond^  80 — and  Cowper  18. 

With  regard  to  the  fecond  exception,  "  that 
"  the  caufe  of  aftion  arofe  before  the  city  of 
"  Middletown  was  incorporated." — 

The  a£t  of  incorporation,  as  appears  from  the 
journals  of  the  Houfe  of  AfTembly,  paffed  and 
was  compleated  the  24th  day  of  May,  fourteen 
days  preceding  the  date  of  the  note  :  And  it  was 
afterwards  revocable  only  as  every  ftatute  is, 
by  a  concurrence  of  both  branches  of  the  Legi- 
flature.     And  altho'  had  it  been  a  penal  or  man- 
datory aft,  it  would  not  have  fo  had  effeft  as  to 
become  obligatory  on  the  citizens  of  the  ftate 
at  large,  until  they  had  had  means  of  the  know- 
ledge of  it,  which  ordinarily  would  not  have 
been  till  the  rifing  of  the  Aflembly,  and  the  re- 
turn of  their  reprefentatives ;  yet  being  in  na- 
ture of  a  grant,  and  there  being  no  time  men- 
tioned therein  when  it  fhould  begin  to  take  ef- 
fect, it  took  effecl:  immediately;  and  the  jurif- 
diclion  it  gave  of  fuits,  where  the  caufe  of  ac- 
tion "Jliould  arife,"  &c.  has  relation  to  the  time 

of 


32  COUNTY  OF  HARTFORD,  MARCH  TERM. 


unlefs,  according  to  the 
Britifh  rule  of  conftruing  ftatutes  in  fuch  cafes, 
"Wooft.&c.  jt  fhall,  in^mplification  of  the  grant  or  autho- 

rity,  have  relation  to  the  firft  day  of  the  feffion 
.'*...  rr  ,  _  ..  .1  n 

in  which  it  palled.  —  i  Roll.  Abr.  465  —  4  Injt. 

25,  27  —  Hob.  309.  As  to  the  obje6tion  to  this 
conftruftion  of  the  aft,  that  it  may  fubjecl  caufes 
to  the  decifion  of  a  forum  which  the  parties,  at 
the  time  the  caufe  of  aftion  arofe,  did  not  con- 
template —  it  is  of  very  little  weight  ;  —  as  it 
does  not  afFeft  the  rule  or  principles  of  the  de- 
cifion :  —  And  it  has  been  always  difregarded  by 
the  legiflature  in  the  inftitution  of  new  courts  ; 
even  where  they  have  gone  fo  far  as  to  change 
the  mode  of  trial  from  a  jury  to  a  lingle  minifter, 
as  in  the  late  enlargement  of  the  jurifdiciion  of 
juftices  of  the  peace. 

It  appears,  therefore,  to  us  from  the  record, 
that  the  caufe  of  aclion  arofe  within  the  jurif- 
di&ion  of  the  city-court  ;  both  in  point  of  time 
and  locality  ;  —  and  that,  that  court  did  not  err 
in  taking  cognizance  of  the  caufe. 


HUKTJNOTON 


33 


HUNTINGTON  againft  JONZS. 

ERROR  from  the  court  of  common  pleas.  ^ 
The  cafe  was,  Jones  recovered  judge-  %ned  in 

.     n    rr        •  '-'.  c\-  f  yicc  in  dii- 

ment  agamlt  Huntingtony  in  an  action  or  trover,  cha:geofhis 
had  execution,  and  committed  him  to  goal. —  *****  fhe  af- 

.(  ,  fignmeac 

Huntmgton  was  a  poor  priloner,.  and  unable  to  muft  limit 

difcharge  the  debt. — Jones  preferred  his  peti-  the^JbJof 

tion  to  the  court  of  common  pleas,  that  Hun-  the  imfter 

tington  might  be  affigned  in  fervice  a  fufficient  JJ"»ei5S 

length   of  time  to  fatisfy  faid  execution,  and  to  his  heirs 

additional  coft. — The  petition  was  founded  on  and  affisns" 

that  part  of  the  ftatute  concerning  arr efts  and  im- 

prifonmentt  whicfy  enacls,  ct  That,  if  no  other 

"  means  can  be  found  to  pay  the  debt  for  which 

<f  fuch  debtor  is  imprifoned,  the  debtor  mall  fa- 

<c  tisfy  the  fame  by  fervice,  if  the  creditor'defire 

<c  it,  and  the  court  fliall  judge  it  reafonable ;  in 

"  which  cafe  the  fuperior  or  county  court  mall 

"  have  power  to  order  and  difpofe  of  fuch  debtor 

"  in  fervice,  for  the  purpofe  aforefaid,  to  fome 

"  inhabitant  of  this  flate,  whether  the  execu- 

c<  tion  by  which   he   is  held  iffued  from  fuch 

"  court,  or  not. 

"  Provided  always^  that  no  court  in  this  ftate 
"  mail,  in  any  civil  cafe,  affign  or  difpofe  of 
"  any  perfon  in  fervice,  until  fuch  court  is  fa- 
"  tisfied,  by  the  oath  of  the  parties  or  other- 
<c  ways,  that  faid  debtor  hath  not  eftate  fulfici- 
"  cient  to  pay  the  debt  for  which  he  is  hoi  den 
"  by  execution,  except  fuch  neceffaries  as  are 
"  by  law  exempted  from  being  taken  by  execu- 
"  tion  ;  and  the  debt  for  which  he  is  holden  is 
"  really  and  bona  fide  due,  on  good  confider- 
"  ation." 

'Huntingtdn,  and  his  other  judgement  credi- 
tors, upon  whole  debts  he  was  like\vife  impri- 
E  foned, 


34 


Hunting- 

ton 

againft 
Jones. 


COUNTY  OF  WINDHAM,  MARCH  TERM. 

foned,  moved  that  Jones's  petition  might  not 
be  granted :  They  urged,  that  each  creditor 
had  an  equal  right  to  the  fervice  of  the  debtor; 
that  his  life  being  uncertain  if  preference  mould 
be  given  to  one,  the  other  creditors  might  lofe 
their  debts. — Huntington  fuggefted  to  the  court, 
that  the  judgement  of  Jones  againft  him  was  un- 
juftly  obtained,  and  moved  that  both  might  be 
examined  under  oath,  as  to  the  juftice  of  the 
debt ;  which  the  court  refufed,  and  difpofed  of 
Huntington,  in  fervice  to  Jones,  the  creditor, 
his  heirs  and  affigns,  for  the  term  of  two  years 
and  fix  months,  in  difcharge  of  the  debt. 

Six  exceptions   in   error  were  taken  to  this 
deciiion  of  the  court  of  common  pleas : — 

1.  That  the  court  ought  not  to  have  affigned 
him  in  fervice  for  the  debt  of  Jones  only,  when 
he  was  confined  in  prifon  by  force  of  other  judg- 
ments in  favour  of  other  creditors. 

2.  That  agreeably  to  the  juft  conftruftion  of 
the  ftatute,  regulating  the  proceedings  in  fuch 
cafes,  Huntington  had  right  to  teftify  under  oath, 
and  to  an  examination  of  the  adverfe  party  re- 
fpecting  the  juftice  of  faid  original   demand; 
which  was  denied  in  this  cafe. 

3.  That  it  was  not  agreeable  to  the  true  fpirit 
and  meaning  of  the  ftatute,  that  Huntington,  un- 
der the  circumftances,  fhould  have  been  aflign- 
«d  in  fervice. 

4.  That  the  court  erred  in  extending  the  fer- 
vice to  fuch  a  length  of  time. 

5.  That  the  firft  judgement  was  rendered  in 
an  aftion  of  trover,  for  the  fatisfaftion  of  which, 
the  law  will  not  juftify  an  alignment  in  fervice. 

6.  That  the  court  erred  in  afligning  faid  Hun- 
tington to  the  heirs  and  affigns  of  faid  Jones. 

On  the  laft  error  alledged,  the  judgement 
was  reverfed ;  For, 

By 


COUNTY  OF  WINDHAM,  MARCH  TERM.  35 

BY  THE  WHOLE  COURT. The  binding     ^Tgg^ 

here  is  not  only  to  the  perfon  named,  but  alfo     ===== 
to  his  heirs  and  affigns :  Whereas,  by  the  ftatute,  Hu™"|r' 
the   right  of  fervice  is   perfonal,  and  extends 
only  to  the  mafter  named  and  approved  by  the 
court,  who  are  to  regard  as  well  the  condition 
and  character  of  the  perfon  to  whom  the  affign- 

ment  is  made,  as  of  the  perfon  affigned. 

The  provifion  of  law  for  affigning  debtors  in 
fervice  being  an  abridgment  of  perfonal  liberty, 
requires  caution  in  exercife,  and  is  not  to  be 
enlarged  by  implication. 


THOMSON  again/I  WALES  and  MOOR. 

ERROR   from  the  court  of  common  pleas.  No  appeal 
Thomfon  brought  his  aclion  of  book-  decifionoV a 

debt  againft  Wales  and  Moor,  adminHirators  on  lower  court 
the  eftate  of  James  M*Neil>  declaring  for  a  debt  debt  aa°on, 
of  2O/.  and  demanding  in  damage  24!. — The  jfjefumai- 
general  iifue  was  plead,  and  judgement  for  the  det^  doe's 

defendant. — The  plaintiff  moved  for  an  appeal,  no£excecd 

i  .   ,  ,      •    ir  rr      >  twenty 

which  was  denied.  pounds,  ai- 

The  error  affigned  was,  that  the  fum  demand-  £S"ffiiJn. 
ed  being  more  than  2O/.  the  plaintiff  was  enti-  ded  in  da- 
tied  to  an  appeal ;  for  the  court  could  not  de-  "^Sat 
termine  that  the  jury  would  not  find  more  than  lum 
2ol.  or  even  the  whole  fum  demanded,  in  da- 
mage. 

Judgement  affirmed. 

BY  THE  COURT. No  appeal   lies.     The 

words  of  the  ftatute  granting  appeals,  are,  "  in 
"  which  the  value  of  the  debt,  damage,  or  mat- 
"  ter  in  difpute,  doth  exceed  the  value  of  2ol. 
"  &c." — In  this  cafe  the  debt  demanded,  which 
is  laid  at  2O/.  only,  is  the  matter  in  difpute ; 
E  2  And 


ex- 


COUNTY  or  WINDHAM,  MARCH  TE*M. 


and  the  conclufion  in  damages  but  a  matter  of 
form.  And  if  intereft  is  to  be  challenged  in  an 
Thomfon  aftion  of  book-debt,  it  is  regularly  to  be  char- 
ged, and  made  parcel  of  the  debt  ailed ged,  that 
the  adverfe  party  may  haV§  notice  of  it  upon 
oyet;  and  we  have  no  practice  of  entering  a 
judgement  for  a  fum  in  debt,  and  a  further  fum 
for  intereft  or  damages,  Tor  the  detention  of  the 
debt.  The  2O/.  the  fum  alledged  as  debt  in 
this  cafe,  is  all  that  judgement  could  have  been 
given  for,  and  was  the  whdle  matter  in  difpute. 
Judge  DYER. — dijjentingn The  ftatute  li- 
mits to  a  final  decifion  of  the  court  of  common 
pleas,  fuch  actions  wherein  the  matter  in  de- 
mand does  not  exceed  the  value  of  2O/. — The 
magnitude  of  the  demand,  is  to  be  afcertained 
by  the  jury,  and  not  by  the  court,  unlefs  by 
^rcement  of  parties  ;  and  fince  the  plaintiff,  in 
this  action,  has  demanded  a  fum  for  intereft  or 
damage,  exceeding  the  ftated  debt,  the  quef- 
tion,  whether  he  mall  recover  more  than  the 
.  debt  fo  ftated,  he  has  a  right  to  have  determi- 
ned by  jury;  and  until  that  ivs  determined,  the 
court  cannot  legally  deprive  the  party  of  an  ap- 
peal. 


BACKUS  again/I  CLEAVELAND. 


An  exifting  ^T^HIS  was  a  fcire  facias,  for  the  affirmance 
galftthc  A  of  a  judgement  againft  the  defendant,  as 
eft^te  of  a  adminiftrator  on  -the  eftate  of  Aron  Cleaveland. 
pSSTw-  The  defendant  pleaded,  that  the  court  of 
derfuc'hcir-  proDate  iflued  an  order,  that  within  a  limited 
"-  time  all  claims  againft  faid  eftate  mould  be  ex- 


mount    can 
not  be  afcer- 


not  DC  alcer-  _       ,         _         .  ..  .  .       ,      ,   .          <• 

tained  vith'n  the  time  limited  by  the  court  of  probate  For  exhibiting  the  claw 
creditors  to  fuch  eltate  ;  fuch  claim   is  not  foreclofoi,  but  may  be  exhi 
recovered  afterwards,  if  the  adminiftravor  have  ciUtc  in  his  hands. 


COUNTY  OF  WINDHAM,  MARCH  TXRM.  37 

hiblted  to  the  defendant,  or  be  forever  barred ; 

and  that  due  notice  thereof  had  been  given  to 

the  plaintiff,  but  he  did  not  exhibit  his  claim     Backus 

within  the  term  limited.  cSand 

The  plaintiff  replied,  that  he  brought  his  writ 
of  error  againft  the  inteftate  to  the 'fuperior  court, 
in  March  1785,  and  obtained  a  reverfal  of  an 
erroneous  judgement  of  the  court  of  common 
pleas. — That  the  inteftate  then  being  in  full  life, 
entered  his  aclion  in  the  docket  of  faid  fuperior 
court,  which  was  continued  till  September  1785. 
— In  April  1785,  the  laid  Aron  died;  and  at 
faid  September  term,  the  defendant  appeared 
and  moved  for  leave  to  profecute  faid  action  on 
the  part  of  faid  deceafed,  which  was  allowed. — 
Said  caufe  was  adjourned  till  December  1785, 
when  final  judgement  was  rendered  in  favour  of 
faid  Aron,  deceafed,  for  forty-nine  pounds  and 
fix-pence  lefs  than  the  fum  of  the  former  judge- 
ment rendered  by  the  court  of  common  pleas, 
which  had  been  reverfed. — Which  fum  was  re- 
ftored  to  the  plaintiff  as  his  damage  by  reafon 
of  faid  erroneous  judgement,  and  which  is  the 
demand  in  queftion. — That  this  demand  could 
not  have  been  exhibited  within  the  time  limit- 
ed, becaufe  it  was  then  pending  in  court  j  all 
which  the  defendant  well  knew. — And  that  the 
defendant  now  holds  in  his  hands  eftate  of  faid 
deceafed,  much  more  than  fufficient  to  difcharge 
the  prefent  debt. 

To  this  there  was  a  demurrer,  and  joinder  in     „».,/. 
i  11  T       •  i-     i       i    3  Willoftj 

demurrer — and  the  replication  was   adjudged  ,3. 

fufficient :   For,  Chilton  vs 

BY  THE  WHOLE  COURT. The  amount  of  Whlffii:- 

the  plaintiff's  claim  againft  the  dilate  of  the  de-  ^Strange, 

ceafed,  could  not  be  ascertained  until  the  final  Tuily  vs 

judgement  in  the  caufe  then  pending  before  the  Sparkes. 

fuperior  court,  as  mentioned  in  the  plaintiff's  *•  Lor(i 
reply;  which  judgement  was  not  rendered  un- 

til 


38 


Backus 

againft 

Cleavland 


2.  Strange, 
1043. 
Hock  ley 
vs  Merry. 

3.  Wilfon, 
262. 

Goddard 
\3  Van- 
ucihevden. 


COUNTY  OF  WINDHAM,  MARCH  TERM. 

til  after  the  expiration  of  the  term  limited  by 
the  court  of  probate,  for  exhibiting  the  claims  of 
the  creditors  to  faid  eftate. 

It  appears  by  the  pleadings,  that  the  defend- 
ant well  knew  the  demand  that  the  plaintiff  had 
againft  the  eftate,  and  the  circumftances  attend- 
ing the  fame,  and  that  he  has  fufficient  eftate  of 
the  deceafed  in  his  hands  to  difcharge  it:  There- 
fore the  plaintiff  is  not  by  law  foreclofed  from  re- 
covering his  debt  according  to  the  true  intent  of 
the  ftatute  in  that  cafe  provided. 

N-  B.  This  judgement  was  afterwards  affirm- 
ed in  the  fupreme  court  of  errors. 


ADAMS  again/I  CLEAVELAND. 

IN  this  cafe  the  fame  point  was  determined  as 
in  the  cafe  of  Backus  againft  Chavdand,  on 
fimilar  pleadings. 


After  the  a- 
verage  is 
ftruck  on  an 
infolvent  ef- 
tate,  no  future 
intereft  can 
a  rife  on  fuch 
average,  as 
relative  to 
the  eftate  j 
but  if  the  ad- 
miniftrator 
fo  conduit  as 
to  fubjeci 
hjmfcif  per- 
fonally  to  the 
payment  of 
interelt,  the 
aftion  mult 
be  brought 
accordingly. 


FITCH  againjl  HUNTINGTON  In  Error. 

HUNTINGTON  brought  his  aaion  to  the 
court  of  common  pleas,  on  a  promiffory 
note,  againft  Fitch,  adminiftrator  on  the  eftate 

of  Azel  Fitch,  deceafed. Fitch  pleaded  in 

abatement,  that  the  eftate  of  faid  deceafed  was 
duly  reprefented  infolvent  (and  in  fa£t  proved 
unable  to  pay  more  than  one  fhilling  and  fix- 
pence  on  the  pound.) That  commiflioners 

were  duly  appointed  to  receive  and  examine 
the  claims  upon  faid  eftate,  who  gave  notice  of 
their  appointment  and  powers,  according  to 
law;  and  that  fro  plaintiff  neglefted  to  exhibit 
his  demand,  until  the  expiration  of  faid  com- 

miffion. 


COUNTY  OF  WINDHAM,  MARCH  TERM. 

miffion,  and  a  final  fettlement  and 'quietus  was 
granted  upon  faid  administration. 

The  plaintiff  replied,  that  in  January  1770,       Fitch 
he  exhibited  his  faid  claim  to  the  commiflioners      againfi 
on  faid  eftate,  in  the  life  of  their  commiffion, 
who  allowed  the  fame,  and  made  return  there- 
of to  the  court  of  probate ;  which   return  was 
accepted  by  the  faid  court. 

Upon  the  fafts  ftated  in  the  replication,  iffue 
was  joined ;  and  a  verdicl  for  the  plaintiff.  Mr. 
Larrabec  and  Mr.  Eiffel  moved  in  arreft,  and 
for  caufe  alledged — 

1.  That  the  jury,  in  their  affeffment  of  da- 
mages, had  allowed  to  the  plaintiff  the  intereft 
on  the  average  fum  of  his  debt,  from  the  time  it 
was  prefented  to  the  commiflioners ;  which  was 
illegal. 

2.  That  the  original  note  on  which,  &c.  ha- 
ving been  exhibited  to  the  commiffioners,  and 
by  them  allowed  and  afcertained  againft  the 
eftate  of  faid  deceafed,  no  aftion  is  now  fuftain- 
able  on  faid  original  note. — And  that  there  can 
be  no  foundation  in  law,  for  a  recovery  of  da- 
mages by  the  plaintiff,  but  upon   a  neglect  of 
payment  by  the  defendant,  as  adminiftrator. 

Mr.  Swift  and  Mr.  Spalding  replied,  that  the 
demand  againft  the  eftate  of  faid  Azel  decea- 
fed, was  a  note  of  hand  on  intereft,  and  that  faid 
average  ought  to  have  been  paid  in  the  month 
of  January  1770,  but  the  defendant,  regardlefs 
of  his  duty  as  adminiftrator,  took  all  the  eftate 
into  his  poffeffion,  and  had  ever  fmce  had  the 
ufe  and  benefit  thereof,  and  had  always  refufed 
to  difcharge  faid  debt ;  and  that  the  jury  allow- 
ed no  more  than  the  lawful  intereft  of  the  plain- 
tiff's average  from  the  time  it  ought  to  havr 
been  paid. 

The  court  of  common  pleas  eftablifhed  this 
verdift,  and  rendered  judgement  thereon. 
Judgement  was  reverfed.  BY 


Fitch 


'ln£t 


COUNTY  OF  WINDHAM,  MARCH  TERM. 

BY  THE  WHOLE  COUHT. Intereft, 

the  plaintiff's  average,  was  allowed  out  of  the 
eftate  of  the  deceafed.  This  would  work  injuf- 
tice  to  the  other  creditors,  who  would  thereby 
be  cut  fhort  of  their  average. — If  an  admini- 
flrator  upon  an  infolvent  eitate,  after  the  ave- 
rage is  (truck,  makes  himfelf  liable  for  intereft, 
it  is  his  own  ejlate  he  fubjeds,  and  not  that  of  the 
deceafed  ;  and  the  a&ion  and  judgement  mould 
accord  witn  the  circumftance  of  the  adminiftra- 
tor's  pcrfonal  liablenefs. 


Cood«  are 
taken  »/  at- 
tachment 
and  deliver- 
ed to  B.  he 
promifes    to 
re-deliver 
them  on  de- 
mand ;  if 
they   t>e   not 
demanded 
v.-ithin    fixtjr 
days  after  fi- 
nal judgment 
in  the  auion 
on  which 
they  are  at- 
tached, B. 
may    re  I',  ore 
them  to  the 
•riginal 
•wner,  and 
shall  not  be 
liable  on  his 
promife  to 
the  officer. 


BUEL  againft  METCALF. In  Error. 

METCALF  brought  his  a&ion  againft  Euel, 
to  the  court  of  common  picas,  on  a  re- 
ceipt executed  by  the  defendant  to  the  plaintiff, 
as  conftable,  for  goods  taken  by  attachment, 
containing  a  promife  to  re-deliver  laid  goods  on 
demand,  for  the  purpofe  of  responding  the  judg- 
ment on  the  writ  of  attachment. 

The  defendant  pleaded,  that  he  held  faid 
goods,  and  was  ready  to  re-deliver  them  to  the 
plaintiff  at  all  times,  until  the  expiration  of 
more  than  fixty  days  after  final  judgement  on 
faid  writ  of  attachment;  that  no  demand  was 
made  for  faid  goods,  and  in  confequence  of 
the  premifes,  he  reilored  them  to  the  original 
owner. 

On  demurrer  to  this  plea,  judgement  was 
rendered  for  the  plaintiff.  , 

The  plaintiff  in  error  tookTtwo  exceptions  to 
this  judgement — 

i.  That  the  declaration  was  infufficient,  as  it 
appeared  from  the  face  of  it,  that  execution  was 

not 


E 


KIMBALL  again/I  CADY. 

RROR,  from  a  decree  of  the  court  of  com- 
mon  pleas,  on  a  petition  for  a  new  trial, 
-  Kimball  brought  his  aclion  againft  Cady  on 
a  promiffary  note  to  the  court  of  common  pleas 
in  Auguft  1781.  —  The  defendant  pleaded  a  ten- 
der  made  in  April  1779.  —  The  plaintiff  replied, 
that  the  money  tendered,  arid  now  offered,  con- 
fifted  of  continental  bills  of  credit,  which  were 
not  at  the  time  of  tender,  and  have  never  fince 
been,  at  the  value  of  one  thirtieth  part  of  the 
debt  contracted  and  promifed  in  faid  note. 

To  this  there  was  a  demurrer,  and  judgement 
for  the  defendant. 

Kimbally  the  plaintiff,  petitioned  for  a  new 
trial.  He  relied  on  the  ftatute  pafled  in  Otlo- 

F  ber 


COUNTY  OF  WINDHAM,  MARCH  TERM.  41 

not  i flue d  till  more  than  fixty  days  after  final 
judgement  was  rendered,  and  therefore  the  ef- 
tate  taken  was  discharged,  and  the  defendant       Buel 
not  holden  to  deliver  it. 

2.  That  the  plea  contained  ample  matter  to 
difcharge  the  defendant  from  his  liability  to 
faid  fuit. 

The  judgement  was  reverfed. 

BY  THE  WHOLE  COURT. The  execution 

was  not  taken  out  till  more  than  fixty  days  after 
the  judgement,  beyond  the  expiration  of -which 
time  the  attachment  could  not  bold  the  proper- 
ty, and  it  became  thereupon  the  duty  of  the  of- 
ficer, or  of  whoever  held  the  property  under 
him,  to  reftore  it  to  the  debtor  (as  the  receipt- 
man  has  done)  and  he  would  have  been  liable 
in  trover  had  he  refufed. 


42  COUNTY  OF  WINDHAM,    MARCH  TERM. 

"jTggy     her  1782,  which  enacls,  "  That  in  all  aft  ions 

=— --=     "  brought  before  any  of  the  fuperior  or  county 

Kimball     "  courts  in  this  ftate,  (either  by  original  \tfrit, 

againft      "  appeal,  or  writ  of  error)  for  the  recovery  of 

y'      •"  any  debt  due  by  bond,  note,  or  book  account, 

*'  contracled  before  or  on   the  feventh  day  of 

"  v{  January^  1780,  and  where  the  defendant  in 

"  iuch  aclion  has,  between  the  firft  day  of  Stp- 

fc  tembery   1777,  and   the   i8th   day   of  Marc'i> 

"  1780,  made  a  tender  of  a  fain  in  ccntinental 

' <c  bills  of  cred.it>  to  the  creditor  or  creditors,  in 

"  fatisfaclion   of  the    debt  demanded,   and  the 

"  creditor  refufed  the  fame  ;  then,  and  in  every 

v>'<f  fu-ch  cafe,  the  -court  before  whom  each  action 

"  may  be  brought,  are  hereby  authorized  to  di- 

"  reci  fuch  cafe  to  be  heard  and  determined  by 

"  reference  thereof  to  indifferent  perfons,  to  be 

"  mutually  chofen  by  the  contending  parties ; 

"  and  in  cafe  they  or  their  attornies  mail  negleft 

"  or  refufe  to  agree  on  fuch  references,  the  faid 

<c  court  are  authorized  to  determine  fuch  caufe 

ef  according  to  the  rules  of  equity,  taking  all  cir- 

*'  cumftances  .into   confidcration  :  Which  faid 

"  referees  fo  chofen  as  aforefaid,  (hall  hear  and 

"  determine  fuch  caufe,  as  to  them  (hall  appear 

"  juft  and  equitable,  taking  into  confideration 

"  all  the  circumftances  thereof,  and  make  re- 

"  turn  to  the  fame  court  where  faid  caufe'fhall 

J<  be  depending ;  who,  unlefs  fufficient  objec- 

"  tions  be  offered  againft  fuch  re'turn,  (hall  ac- 

"  cept  the  fame,  and  render  judgement  thereon 

*l  accordingly.' And  on  this  ground  he  al- 

ledged>  that  a  replcader  ought  to  be  granted; 
•for  that  he  had  miftook  his  plea,  in  that  he 
did  not  traverfe  the  defendant's  plea  in  bar,  and 
•thereby  open  the  fubjecl  of  enquiry  at  large,  to 
the  court. — That  the  ftatute  enables  the  court, 
in  fuch  cafe,  to  give  the  caufe  an  equitable  con- 
fideration, and  adjudge  to  the  plaintiff  what  was 

equitable 


COUNTY  OF  WINDHAM,  MARCH  TERM.  43 

equitable  and  juft,  notwithftanding  the  tender.  ^yS^ 

Three  exceptions  were  taken  to  this  petition,  -  --  = 
at  the  court  of  common  pleas,  by  way  of  abate- 


1.  That  the  petitioner  had  not  laid  a  profett 
of  the  legal  proceedings  mentioned  in  his*  peti- 
tion. 

2.  That  nothing  appeared  by  the  petition, 
but  that  compleat  juftice  had  taken  place. 

3.  That  the  ftatute  mentioned  in  the  petition 
did  not  exift  until  long  after  the  final  trial  ; 
therefore  not  applicable  to  this  cafe. 

The  exceptions  were  adjudged  fufficient,  and 
the  petition  difmifled  :  And  the  decree  of  the 
court  of  common  pleas  being  examined  on  this 
writ  of  error,  was  affirmed. 

BY  THE  WHOLE  COURT.  -  There  are  two 
grounds  for  affirming  the  decifion  of  the  court 
of  common  pleas  :  — 

1.  If  the  petition  was  for  a  new  trial,  it  was 
matter  of  difcretion  with  the  court,  to  which.it 
was  prefered,  to   grant  or  negative,  and  error 
cannot  be  predicated  upon  fuch  decifion. 

2.  The  petition  cannot  be  fuftained  on  the 
ftatute  for  the  equitable  decifion  of  tenders  in 
certain  cafes,  as  there  had  been  a  judgement  at 
law:  For  the  provifion  of  the  ftatute-  extends 
not  to  cafes  adjudged  and  jclbfed  at  law,  but  to 
cafes  open  and  profecuting  at  law,  and  is  ex- 
prefsly   limited   to  actions  pending  by  original 
-writ,  appeal,  or  writ  of  error.  —  An  extenfion  of 
the  ftatute  retrofpeclively  to  overthrow  judge^- 
ments  that  have  been  rendered  and  acquiefced 
in  at  law,  would  be  very  inconvenient,  and  the 
words  of  the  aci  will  not  admit  of  fuch  a  con- 
ftru&ion. 


F2 


1766. 


In  cafe  <  F  a 
joint  ami  fe- 
vcraldebt,  a 
dif charge  to 
one  of  the 
debroisfur 
Cordon  of 
che  debt,  is 
only  a  d'i- 
charge  of 
fuch  pare  as 
is  described, 
and  the  per- 
fon  difchar- 
ged,  aswell 
as  the  other 
debtors,  are 
ft  ill  liable 
for  the  re- 
mainder. 


COUNTY  OF  NEW-LONDON,  MARCH  TERM. 


ROGERS  again/I  HEMSTED  and  Others. 

THIS  was  an  aftion  on  a  written  agreement 
between  the  plaintiff  and  defendants,  fta- 
ting,  "  That  whereas  they  were  jointly  con- 
"  cerned  in  the  capture  of  a  fmall  boat  and  fe- 
"  veral  cattle,  in  April,  1783,  which  were  li- 
"  beled  and  condemned  to  the  ufe  of  the  cap- 
"  tors,  and  diftribution  made  accordingly : — 
"  They  therefore,  jointly  and  feverally  engaged 
"  to  pay  the  plaintiff  (in  whofe  name  faid  con- 
"  demnation  was  had)  their  refpeciive  propor- 
"  tions  of  any  future  expence  that  might  arife  in 
"  the  premifes." Subfequent  to  this  agree- 
ment, one  Randal  claimed  the  property  of  the 
boat  and  cattle  mentioned  in  the  writing;  for 
which  he  inftituted  a  fuit  againft  the  plaintiff, 
and  recovered  about  fixty  pounds. — This  ac- 
tion was  brought  to  recover  of  the  defendants 
their  refpeciive  proportions  of  faid  expenditure* 

The  defendants  pleaded  a  difcharge  from  the 

plaintiff,  which  was  recited  in  thefe  words 

!<  Received  of  Daniel  Harris  twenty  eight  filver 
"  dollars,  on  account  of  a  boat  and  cattle  taken 
11  from  Randal  the  4th  of  April,  1783,  and  con- 
"  demned  to  faid  Rogers,  and  fince  faid  Randal 
"  has  got  an  execution  againft  faid  Rogers  for 
"  fixty  feven  pounds; — and  this  is  Daniel  Har- 
*'  ris's  receipt  for  his  part  of  faid  execution.'* 

To  this  plea  the  plaintiff  demurred  general- 
ly.  And, 

BY  THE  WHOLE  COURT.  This  plea  is 

inefficient. This  receipt  was  not  in  full  of 

the  execution,  but  only  of  fuch  part  or  propor- 
tion of  it  as  Harris  had  received  of  the  proper- 
ty condemned.  He,  with  the  reft  of  the  de- 
fendants, as  they  were  jointly  and  feverally 
bound  f>r  each  others  like  proportions,  remain- 
ed holden  for  the  refidue  of  the  execution. 


COUNTY  or  NEW-LONDON,  MARCH  TERM.  45 


HUNTINGTON  and  Others  againft  CARPENTER^ 

THIS  was  an  action  of  difleifm,  brought  by 
the  inhabitants  of  the  town  of  Norwich, 
againft  the  defendant,  as  leflee  of  the  firft  eccle- 
fiaftical  fociety  in  faid  town. — On  fpecial  plead- 
ings, the  cafe  was  thus  dated  for  the  decifion  of 
court : 

The  town  of  Norwich,  before  the  year  1695; 
constituted  but  one  parifh  or  ecclefiaftical  fo- 
ciety ;  and  the  inhabitants  tranfa6led  their  town 
and  parochial  bufmefs  at  the  fame  meetings.  In 
June,  1765,  they  appointed  a  committee  to  pur- 
chafe  lands  for  the  ufe  and  accommodation  of 
a  gofpel  minifter  amongft  them:  The  commit- 
tee purchafed  of  Stephen  Gif&rd  the  lands  in 
queftion,  and  took  a  deed  of  bargain  and  fale, 
expreffed  to  be,  <{  to  the  inhabitants  of  the  tow n 
"  of  Norwich,  their  heirs,  fucceffors  arid  af- 
"  figns."  In  December,  1697,  the  inhabitants 
of  the  town,  by  a  vote,  levied  a  tax  on  them- 
felves,  for  the  purpofes  of  difcharging  the  mi- 
nifter's  falary,  paying  for  the  land  purchafed  of 
Gifford,  and  defraying  other  parifh  charges. 

The  lands  in  queftion  were  immediately  ap- 
plied to  the  ufe  for  which  they  were  purchafed, 
and  have  ever  fince  been  applied  to  the  ufe  of 
the  -miniftry  in  the  firft  fociety  in  Norwich. — — 
The  inhabitants  of  the  town,  by  vote,  in  De- 
cember, 1701,  fequeftered  for  the  ufe  of  the  mi- 
niftry,  other  lands  adjoining  the  lands  in  quef- 
tion, and  gave  the  whole  the  name  of  the  Par- 
fonage  Lot. — In  1716,  by  aft  of  affembly,  two 
other  ecclefiaftical  focieties  were  incorporated 
from  the  town  of  Norwich,  called  the  Eafi- 
Farms  and  the  Weft-Farms;  after  which  (to wit) 
in  July,  1717,  Mr.  Benjamin  Lord  was  fettled 
in  the  miniftry  in  the  old  or  firft  fociety  in  faid 

town ; 


46 

Ifl?!: 

t 

Hunting- 
ton, 
ugalnj} 
Carpenter. 


COUNTY  OF  N.EW- LONDON,  MARCH  TERM. 

town;  and  in  Auguft,  1717,  the  faid fociety,  by 
vote,  granted  to  him  the  lands  in  queftion,  for 
the  term  of  his  miniftry ;  which  he  held  until 
the  time  of  his  death,  which  happened  in  April, 
1784. 

The  proprietors  of  the.  tow.nfhip  of  Norwich, 
in  fundry  legal  meetings,  did  grant,  lay  out,  and 
fequefter,  fundry  tracts  of  land  in  the  focietie:> 
of  the  Eaft  and  Weft  Farms,  for  the  fupport  of 
the  miniftry  in  thofe  two  parifhes. 

That  the  defendant  holds  the  demanded  pre- 
mifes  by  force  of  a  leafe  from  the  rirft  ecclefi- 
aftical  fociety  in  Norwich,  for  term  of  years, 
not  yet  expired,  and  bearing  date  before  the 
plaintiffs'  writ. 

There  was  a  demurrer  to  the  replication,  and 
joinder  in,demurrcr — >and  judgement  for  the  de- 
fendant. 

BY  THE  COURT. -The  inhabitants  of  each 

town  in  this  ftate  (not  divided  into  focieties) 
are  by  law  a  corporation  for  the  purpofe  of  fup- 
porting  public  worfhip,  and  the  gofpel  miniftry, 
as  well  as  for  civil  purpofes;  and  in  their  cor- 
porate capacity,  have  power  to  receive  and  hold 
eftates  real  and  perfonal,  for  (aid  ufes,  and  to  call 
and  fettle  minifters,  build  meeting,  houfes,  &c. 

2.  The  name  and  defcription  by  which  they 
receive  eftates,  and  tranfacVbulinefs  in  their  ec- 
clefiaftical  and  civil  capacity,  is  the  fame  (to 
wit)  the  inhabitant*  of  the  town  of,  &c. 

3.  When  part  of  the  inhabitants  of  fuch  town 
are  conftrtuted  a  new.  and  diftincl  fociety,  the 
remaining  inhabitants  are  by  law  confidered, 
for  eccleh'aftical  purpofes,  as  the  fame  corpora- 
tion, having  continuance  and  fucceflion,  by  the 
name  of  the  fir/I  fociety,  which  before  exifted  by 
the  name  of  the  inhabitants  of  the  town,  and  as 
holding  the  meeting  houfe,  and  all  other  eftates 
that  the  inhabitants  of  fuch  town  received,  ac- 
quired 


COUNTY  OF  NEW-LONDOV,  MARCH  T££.M»  -i; 

quired  and  held,  for  any  of  the  ufes  for  which         ^86~ 
focieties  are  conftituted,  and  as  bound  to  per- 
form all  the  contracts  and  agreements  made  by    Hunting- 
the  inhabitants  of  fuch  town,' with  the  minifter,'    ">n,  &c 
for  his  fupport,  or  refpefting  any  other  matter  c^5f( 
proper  to  a  fociety. — This  opinion  is  fupported 
by  former  adjudications,  and  univerial  cuftom.- 

4.  In  the  prefent  cafe,  it  appears  from  the  re- 
cords of  the  votes  and  proceedings  of  the  town 
of  Norwich,  recited  in  the  pleadings,   that  the 
land  in  queftion  was  purchafed  when  there  was 
but  one  ecclefiaftical  fociety  in  the  town,  with 
exprefs  intention  to  be  applied  in  fupporting  the 
gofpei  miniftry. — That  the  purchafe  money  was 
collected  in  the  fame  tax  with  the  minister's  fa- 
lary :  And  although  the  deed  from  Gijford  doe> 
not  mention  the  ufe  for  which  faid  land  was  pur- 
chafed, and  contains  limply  a  fale  and  transfer, 
for  a  valuable  conlideratiori,  as  it  was  out  of  his 
power,  as  grantor,  to  direft  the  ufe;  yet  it  ap- 
pears, that  the  grantees  a6ting  in  the  fame  capa- 
city as  when  calling  and  fettling  a  minifter,  ap- 
plied the  ufe  of  faid  land  toward  the  fupport  of 
ieveral  fucceffrve  minifters  of  the  gofpei,  in  that 
part  of  the  town  of  Norwich  which  is  now  call- 
ed the  firft  fociety,  for  a  term  of  more  than 
eighty  years:  That  it  was  early  called  the  par- 
fonage  land,  and  has  never  been  applied  to  any 
other  ufe  :— And  therefore  ought  to  be  confi- 
dered  as  purchafed  and  held  by  the  fame  corpo- 
ration that  is  now  called  the  rirft  fociety  in  the 
town  of  Norwich. 

5.  As  it  clearly  appears,  that  it  was  the  in- 
tention of  the  inhabitants  of  the  town  of  Nor- 
wich (in  whatever  capacity  they  afted)  to  ap- 
propriate faid  land  for  the  ufe  and  fupport  of 
the  miniftry  in  that  part  of  the  town  now  called 
the  firft  fociety;  and   the  fame  having  been  fo 
appropriated  and  applied  in  manner  aforefaid, 

it 


COUNTY  o?  NEW-LONDON,  MARCH  TERM. 

~i786\  'l  ougnt  to  be  confidered  as  an  appropriation  or 
—-==  fequeftration  to  that  ufe,  according  to  the  an- 
Hunting-  rient  ufage  and  practice,  and  Co  is  confirmed 

book,  159.) — So  judgement  was  for  the  defen- 
dant, as  he  held  by  leafe  from  the  firft  fociety 
in  faid  Norwich ;  and  faid  firft  fociety  were  ad- 
judged to  hold  the  lands  in  excluiion  of  the 
town  at  large. 

The  Chief  Juflice  faid,  he  was  doubtful  whe- 
ther all  the  reafons  affigned  by  the  court  were 
conclufive;  but  on  the  3d  there  could  be  no 
doubt,  it  being  a  point  fully  fettled  by  former 
adjudications. 

Note. Judge  Dyer  did  not  fit  in  this  cafe, 

being  uncle  to  one  of  the  plaintiffs ;  and  Judge 
Ellfworth  excufed  himfelf,  having  at  a  former 
trial  been  of  counfcl  for  the  defendant. 


A  v  E  R  Y  again/I  W  £  T  M  o  R  E — (Sheriff. ) 
if  a  theriff  Hpms  aftion  was  inftituted  againft  the  fhe- 

bc  attached          I  .  o       . 

in  a  civil  JL  nit,  for  the  default  or  one  ot  his  deputies, 
cefs  tlcalr °"  ^7  writ  °^  attachment,  and  the  fheriff's  body 
arrefted. — He  pleaded  in  abatement^  that  du- 
ring his  continuance  in  the  office  of  fherifF,  his 
perfon  was  not  liable  to  arreft  or  imprifonment, 
by  civil  procefs ;  and  for  caufe  alledged,  that  as 
the  fheriff  is  ex  officio  keeper  of  the  prifon,  an 
imprifonment  of  his  perfon  would  operate  as  a 

-releafe  to  the  prifoners  of  the  county. On 

the  plea  of  abatement,  the  cafe  was  appealed  to 
the  fuperior  court — and  for  the  reafon  alledged 
in  the  plea  the  procefs  abated. 

It  was  then  contended  on  the  part  of  the  plain- 
tiff, that  ihefuit  ought  to  proceed  as  afummon, 

and 


COUNTY  OF  NEW-LONDON,  MARCH  TERM. 

and  to  ceafe  only  in  its  operation  againft  the 
perfon  of  the  fheriff.  But  the  Court  faid,  that 
the  mode  of  procefs  being  improper,  it  muft 

abate,  in  toto. 

Wetmore. 

Note — The  fubftance  of  this  Report  was  given 
me  by  Mr.  Huntington. 

N.  B.     It  is  the  practice  of  all  courts  in  the 
Jlate  of  Connecticut,  to  try  pitas  in  abatement  -with-  . 
out  any  anfwer.     If  the  plaintiff  choofes,  he  may 
demur  on  traverfe,  but  if  he  does  not  choofe,  he  in- 
forms the  court,  ore  tenus,  what  parts  of  the  plea 
he  denies,    and  the  court  direct  an  enquiry;  but 
othtrwife,  itjlands  demurred  to,  and  the  record,  is, 
"flea  in  abatement  fujficient,  or  infufficient." 


Note. In  this  county,  March  term,  1784,  the  court 

eftablifhed  a  Handing  rule  for  computing  intereft  on  obliga- 
tions, where  one  or  more  payments  have  been  made 
Which  follows — Compute  the  intereft  to  the  time  of  the 
firft  payment ;  if  that  be  one  year  or  more  front  the  time 
the  intereft  commenced  ;  add  it  to  the  principal,  and  de- 
du£l  the  payment  from  the  fum  total.  If  there  be  after  pay- 
ments made,  compute  the  intereft  on  the  balance  due  to  the 
next  payment,  and  then  deducl  the  payment  as  above  ;  and 
in  like  manner  from  one  payment  ttf  another,  till  all  the 
payments  arc  abforbed ;  provided  the  time  between  one  pay. 
mer.t  and  another  be  one  year  or  more. But  if  any  pay- 
ment be  made  before  one  year's  intereft  hath  accrued,  then 
compute  the  intereft  on  the  principal  fum  due  on  the  obli- 
gation for  one  year,  add  it  to  the  principal,  and  compute 
the  intereft  on  the  fum  paid,  from  the  time  it  was  paid,  up 
to  the  end  of  the  year  ;  add  it  to  the  fum  paid,  and  deduft 
that  fum  from  the  principal  and  intereft  added  as  above. 
If  any  payments  be  made  of  a  lefs  fum  than  the  intereft  ari- 
fen  at  the  time  of  luch  payment,  no  intereft  is  to  be  com- 
puted but  only  on  the  principal  fum  for  any  period. 


HENSHAW 


5° 


> 


ora  note. 

can  have  no 
right  of  ac- 

tion  againu 

the  affignor, 


time  of  aC- 


bylomcaft 


cin'»°aPCadir 
charge;  &if 

.  pan  ef  the 


COUNTY  OF  MIDDLESEX,    JULY  TERM. 

HENSHAW  againjl  CURTIS  COE  and  JOSEPH 
COE,  Executors  oj  JosEPirCo*,,  dcccafcd. 

ERROR  from  the  court  of  common  pleas, 
-  Hen/Jia-w  brought  his  aftion  on  die 

r  •     n       i          i    r        \  -^-,1 

cale  againit  the  defendants.  —  The  declaration 
contained  two  counts  — 

. 

i.  I  hat  in  November,  1  769,  one  JLlijha  Clark 
(fince  dead)  .executed  a  promiffoiy  note  to  ihe 
tejlator  for  eighteen  pounds  ten  millings.  And 
in  Auguft,  1771,  for  the  confideration  of  twen- 
ty  pounds  eight  millings  and  nine  pence  (being 
tne  principal  and  intereft  then  due")  the  tejlator 
affigned  it  to  the  plaintiff.  —  That  the  plaintiff 
had  demanded  payment  of  Clark,  who  refufed, 
of  which  he  had  sivcn  notice  to  the  teflotor\ 

,  i       i  i-    11  rr  j       o 

whereupon  he  became  liable,  allumed,  &c. 
^ount  ^or  money  had  and  received. 


he  accepts 


2l 


The  defendants  pleaded  to  the  firfl  count,  — 
That  having  prayed  oyeroi"  the  note,  there  ap- 
peared  to  be  ciidorfed  on  the  back  thereof  by 
t^lc  plaintiff,  fix  pounds  twelve  millings  and  fix- 
pence,  received  of  faid  Clark,  in  January,  1779  ; 
an(i  m  April,  1780,  judgement  was  rendered  for 
jhe  remainder.  —  That  at  the  time  of  the  aflign- 
ment  of  faid  note  to  the  plaintiff,  and  for  leve- 
ral  years  after,  faid  Clark  was  abundantly  able 
to  difcharge  the  debt.  —  That  the  plaintiff  did 
not  profecute  faid  note  in  the  law,  until  more 
than  eight  years  after  he  received  it;  nor  did 
he  within  that  time  give  any  notice  to  the  tejla- 
tor, or  the  defendants,  that  faid  Clark  had  re- 
fufed  payment  ;  but  held  the  fame  in  his  own 
cuftody,  without  offering  to  return  it;  that  faid 
Clark  is  now  dead,  infolvent,  and  the  contents 
of  faid  note  loft. 

That  the  fecond  count  is  for  the  fame  matter, 
caufe  and  thing  alledged  in  the  firft  count. 

The  plaintiff  demurred  generally  —  and  judge- 
ment was  rendered  for  the  defendants. 


COUNTY  OF  MIDDLESEX,   JULY  TERM.  51 

The  error  affigned  was,  that  the  plea  in  bar     ~~{j$6l 
•was  in  fubftance  the  general  iffue,  and  contain-     = 
ed  only  a  denial  of  the  fads  ftated  in  the  decla-    Henfhaw 
ration ;  therefore  could  not  be  pleaded  in  bar,  c^'s 
but  if  true,  ought  to  have  been  given  in  evi- 
dence under  the  general  iffue. 

Mr.  Dana  and  Mr.  Woodruff,  for  the  defen- 
dants in  error,  pleaded  in  abatement,  that  the 
plaintiff  appealed  from  the  judgement  of  the 
court  of  common  pleas  during  the  fitting  of  the 
court,  and  entered  bonds  therefor,  ^according 
to  law;  therefore  final  judgement  was  not  yet 
rendered  in  laid  caufe. 

Mr.  Miller,  for  the  plaintiff  in  error,  demur- 
red, becaufe  no  duty  had  been  paid  on  the  ap- 
peal— and  the  plea  was  adjudged  inftifficient. 

BY  THE  WHOLE  COURT. The  appeal  was 

void,  the  ftate  duty  not  having  been  paid  and 
certified  as  the  law  directs ;  therefore  no  pro- 

cefs  was  pending  thereon. The  defendants 

then  pleaded  in  nullo  eft  erratum — and  the  judg- 
ment of  the  court  of  common  pleas  was  affirmed. 

BY  THE  wnaLE  COURT. By  the  align- 
ment of  the  note  declared  upon,  the  plaintiff 
was  fully  empowered  to  recover  and  receive  the 
money  due  thereon,  of  Elijlia  Clark,  who  exe- 
cuted the  note  :  And  therefore  the  defendants 
could  not  be  liable  to  any  aftion  thereon,  unlefs 
the  plaintiff  mould  fliow  that  the  money  could 
not  be  recovered  or  obtained  from  Clark,  either 
on  account  of  its  not  being  due,. or  the  promijjor 
being  injolvent  at  the  time  of  the  ajjignment,  or 
fome  acl  of  the  affignor  to  discharge  it  after- 
wards :  Neither  of  which  is  alledged  in  the  pre- 
fent  cafe.  And  Clark,  years  after  the  affign- 
ment,  became  and  is  infolvent.  And  the  plain- 
tiff, by  receiving  part  of  the  money  due  on  the 
note  of  the  promiffor,  is  considered  in  law  as  ac- 
cepting him  payor  for  the  whole. 

G  2  The 


52  COUNTY  OF  MIDDLESEX,    JULY   TERM. 

The  STATE  again/I  LUTHER  STUTSON. 

Q  TUTSON  was  indiaed  on  the  ftatute  againft 
counterfeit-    O  counterfeiting,  and  a  verdift  found  againft 
The  indiament  charged,  that  he  did  fe- 


lett«and  lonioufly  aid  and  ajfift  Bazaled  P  helps,  in  ma- 
SS  °ce7L  kin§  and  counterfeiting  fifteen  French  guineas, 
much  as  af-  one  hundred  Spani/Ji  milled  dollars,  and  one  hun- 
dred  piftareens,  of  falfe  and  bafe  metal,  in  like- 
.  nefs  and  imitation  of  the  true  guineas,  &c.-  -  . 
The  words  of  the  ftatute  are,  "  That  whofoever 
"  mail  ftamp,  or  any  other  ways  counterfeit  ar-y 
"  of  the  coins  of  gold  or  filver  currently  paffirg 
"  in  this  ftate,  or  that  fhall  utter  and  put  off  any 
r*  fuch  counterfeit  coins,  knowing  the  fame  to 
"  be  bafe,  falfe  and  counterfeit,  or  that  fhall 
"  make  any  inftrument  or  inftruments,  for  the 
u  counterfeiting  any  of  the  coins  aforefaid,  or 
"  fliall  be  aiding  and  aflifting  therein,"  &c. 

Mr.  Root,  of  counfel  for  the  prifoner,  moved 
in  arreft,  and  for  caufe  alledged,  that  the  offence 
charged  is  not  provided  againft  by  ftatute. 
The  motion  was  over-ruled  -  For, 
BY  THE  WHOLE  COURT.  -  The  exception 
under  the  motion  is,  that  the  aiding  and  cjjijling 
in  the  ftatute,  is  limited  to  that  of  making  the 
implements  for  counterfeiting,  and  extends  not 
to  tHat  of  counterfeiting  itfelf,  which  is  the  aid- 
ing and  afnfting  laid  in  the  indiament. 

Both  the  letter  and  the  reafon  of  the  ftatute 
extend  to  aiding  and  aflifting  in  the  latter  cafe, 
as  well  as  the  former  :  And  befides,  whoever 
does  in  faa  affift  in  the  counterfeiting,  does  a 
part  of  it,  and  is  as  truly  the  counterfeiter  as 
any  one  can  be  who  does  not  execute  the  whole 
alone;  and  it  is  immaterial  whether  he  be  char- 
ged as  a  fole  or  joint  agent  in  the  matter.  —  So 
that  the  allegation  that  he  did  aj/fijl  in  the  coun- 

terfeiting, 


COUNTY  OF  MIDDLESEX,  JULY  TERM.  53 

terfeiting,  is  fubftantially  the  fame  as  that  he  did  ^YplT. 

counterfeit,  &c.  and  brjngs  him  fully  within  the  ==--- 
ftatute  as  a  principal. 


PHILIP  MORTIMER,  Efq.  againftCuAKLEsand 

GEORGE  CALDWELL.  foived,  and 

all  company 

ACTION  on  book  debt.  -  The  defendants  f^  taof;ne 

pleaded,  that  the  book  of  the  plaintiff,  on  partner^ 

oyer,  is  found  to  confift  of  articles  and  fervices  £,hmebse~ 

done  and  furnifhed  for  the  defendants,  as  co-  bound  to  pay 

partners  and  traders  in  company,  between  the  j£bts>™Hciy' 

years   1761   and  1766.  —  That  on  the  1  5th  day  becomes  a 

of  December,  1768,  the  defendants,  by  a  wri-  rpeci..iafto£ 

ting  under  their  hands,  diffolved  the  co-part-  f'-foivency 

n  •          c      L  r    m        i  J    r<  is  pafled  in 

nerthip  ot  the  company  ot  Charles  and  George  his  favour, 
CaldwelL  —  And  by  the  fame  writing,  the  faid  "emP|ins 

yi7        7  rr  i  j  j  r   •  1    his  body 

Charles  alligned   over   and   conveyed   to   laid  fromimpri- 
George,  all  the  company  concerns,  intereft  and  ^nhiTaf-1" 
credits,  for  faid  George,  to  receive  and  convert  fignm.j  his 
to  his  own  ufe.  —  And  George,  in  consideration  ^PeTfo? 
thereof,  took  upon  himfelf,  covenanted  and  en-  the  ufeothis 
gaged,  to  pay  all  the  company  debts  then  due  : 
And  thereby,  all  the  company  intereft  and  ere- 
dits,  became  the  property  of  laid  George.  >  and  it 
became  his  duty  to  pay  and  difcharge  all  the  fisns 
company  debts.  —  That  the  book  on  which,  &c. 
is  one  of  faid  company  debts,  which  it  was  the  T&« 
duty   of  faid  George  to  pay  and  fatisfy.  —  That  exhibitc4*to 
faid  Charles  being  diverted  of  all  property  or  his««ftees, 

...  .  y,.          andavera- 

right  to  the  company  dues,  intereit  and  credits,  gcd  among 
and  faid  George  being  reduced  by  lofles  and  mif-  jls,private. 

f  r  i    i  •  •    •  i    debts  i—  the 

fortunes,  preierred  his  petition  to  tne  General  other  psrc- 
Aflembly  in  May,  1771,  representing  his  loifes,         *" 
misfortunes,  and  inability  to  pay  all  laid  debts, 


derdueon 

company- 

debts. 


54  COUNTY  OF  MIDDLESEX,  JULY  TERM. 

TTgg*         The  Gen.  Affembly  inquired  into  the  matter, 
=::4:=     and  found  that  his  debts,  including  faid  compa- 
Mortimer   ny  debts,  which  it  was  his  duty  to  pay,  amounted 
againft      to  5,788/.  95.  ^d.  and  that  his  eftate  and  credits 
Caid.vell.    amOLmted   to   3.049/.   os.   y^d.   including  faid 
company  interefts  and  credits. — That  the  Ge- 
neral AfiTembly  paffed  a  fpecial  aft  of  infolven- 
cy,   exempting  the  perfon  of  faid  George  from 
imprifonment  from  any  debt  then  due,  upon  af- 
figning  over  all  his  property  as  before  ftated, 
to  truftees  therein  mentioned,  for  the  ufe  of  his 
creditors. — (Which  off  is  recited  at  large  in  the 
plea. ) 

That  faid  George  did,  in  purfuance  and  com- 
pliance with  faid  a6l  of  Affembly,  make  over 
and  affign  to  faid  truftees  all  his  eftate,  both 
real  and  perfonal,  with  all  the  eftate,  dues,  and 
credits  of  faid  company  of  Charles  and  George 
Caldwell,  to  and  for  the  ufe  and  benefit  of  his 
creditors. — And  that  they  ever  have  been  fince, 
at  the  fole  difpofal  and  direction  of  faid  credi- 
tors, ,one  of  whom  was  the  plaintiff,  who  was 
privy  to,  and  acquiefced  in  faid  tranfa&ion. 

That  in  May,  1772,  upon  application  of  faid 
truftees,  the  General  Affembly,  by  a  fpecial  acl, 
empowered  them  to  fue  for,  and  recover  all  the 
debts,  credits  and  monies  due  to  faid  Georget 
and  the  late  company  of  Charles  and  Georget 
and  when  recovered,  to  divide  and  diftribute  the 
fame  amongft  his  creditors. — (Which  aft  is  reci- 
ted at  large  in  the  plea.) 

And  that  thereupon  all  the  eftate,  interefts, 
fecurities,  papers,  vouchers,  and  receipts,  rela- 
ting to  faid  company  debts  and  credits,  were 
delivered  over  into  the  hands  of  faid  truftees 
to  fettle  and  adjuft  with  the  feveral  creditors, 
and  faid  Charles  and  George  are  wholly  diverted 
of  them,  and  have  no  means  in  their  power  to 
evince  any  payments  that  have  been  made ; 

and 


COUNTY  OF  MIDDLESEX,  JULY  TERM.  55 

and  thereupon  faid  George  Caldwell,  and  faid  ""ySST 
company  of  Charles  and  George  Caldwdl,  be-  —  •  "^ 
came  exonerated  and  difcharged  from  all  fuits  Mortimer 
and  demands  againft  them,  for  any  debts  due 
and  owing  from  faid  company,  until  a  final  ave- 
rage fhould  be  made  out  by  faid  truftees,  purfu- 
ant  to  faid  ad  of  infolvency ;  and  then  only  for 
the  refiduum  of  faid  debts  that  mould  be  found 
due  after  fuch  average  mould  be  made. — And 
that  no  average  hath  been  made  out  by  faid 
truftees,  but  the  fame  is  ftill  depending  in  the 
hands  of  faid  truftees,  fubjeft,  as  it  ever  has 
been,  to  the  order  and  direction  of  faid  cre- 
ditors, of  whom  the  faid  Philip  Mortimer  was, 
and  is  one. 

To  this  there  was  a  demurrer,   and  joinder 
in  demurrer. 

BY  THE  COURT. The  plea  is  infufficient. 

— The  fpecial  aft  of  infolvency  fet  forth  in  the 
plea,  goes  to  the  exemption  of  the  perfon  of 
George,  one  of  the  defendants  (leaving  his  eftate 
liable,  which  he  may  afterwards  acquire.)     But 
it  extends  not  to  Charles,  the  other  defendant. 
He  is  not  named  in  it.     Nor  is  it  grounded  on 
any  fuppofed  inability  of  his,  to  pay  the  com- 
pany debts.     Nor  does  it  operate  to  difcharge 
him  on  the  ground  of  the  fuppofed  hardfhip 
there  would  be  in  his  remaining  liable,  after 
the  perfon  of  the  other  joint  debtor  is  libera- 
ted, and  the  company  effects  and  papers  are 
gone  into  the  hands  of  truftees  and  out  of  his 
controul.      If  he  is  in  fa£t  more  expofed  and 
defencelefs  to  his  creditors,  fince  the  pafling  the 
aft  of  infolvency,  than  he  was  before,  it  does 
not  follow  that  it  has  difcharged  him.     But  he 
ever  was  liable  to  be  levied  upon,  folely,  for  all 
,   the  company  debts,  and  all  their  contracts  were, 
in  their  nature,  joint  and  fcveral.      Nor  is   it 
owing  to  the  patting  of  the  aft  of  infolvency, 

that 


56  COUNTY  OF  MIDDLESEX,  JULY  TERM. 


that  he  has  not  right  to  controul  the  company  ef- 
fefts ;  he  having  fold  and  relinquished  his  mare 
Mortimer    in  them  years  before,  at  the  diifolution  of  the 
2$ainft      partnerfhip;  and  the  att  provides  for  no  other 
"  '    alignment  than  of  that  which  -is  confidered  as 
George's  eftate.     Nor  need  there  be  any  diffi- 
culty  about  the   company   books  and  papers. 
Free  accefs  may  be  had  to  them,  and  an  order 
of  court,  if  neceffary,  might  be  obtained  for  their 
being  brought  into  court  when  requifite  in  the 
trial  of  a  caufe. 

If  the  trultees  have  paid  the  plaintiff  any  part 
of  his  debt,  out  of  the  avails  of  the  effects  af- 
figned  to  them,  it  can  be  mown  and  applied 
when  damages  come  to  be  aifcffed.  A  balance, 
it  is  clear,  there  muft  be-due  to  him,  even  if  the 
alignment  to  the  truftees  be  considered  a*  an 
aftual  payment  to  the  creditors,  and  to  the  no- 
minal amount  of  the  credits  and  eiie6ts  align- 
ed. And  no  reafon  appears  why  judgement 
fhould  not  be  rendered  in  the  prefent  action, 
for  the  afcertaining  and  recovering  what  ftill 
remain  sdue. 

Judge  DYER, — dijjenting. C.  and  G.  Cald- 

wcll,  when  they  entered  into  contract  with  the 
plaintiff,  were  known  to  be  in  company;  and 
every  contract  they  made  muft  be  confidered 
and  governed  by  the  true  legal  intention  of  the 
parties,  and  the  laws  of  the  ftate  then  in  being 
and  force  ;  and  if  altered  by  any  foji  faBo  law, 
or  private  acl  of  the  legiflature,  will  operate  to 
deftroy  or  render  void  the  original  contract. 
Bacon's  Abr.  tit.  ftatute  c. — Salkeld  igS—Brew- 
Jler  vs.  Kitchd. — But  it  cannot  operate  to  fub- 
je£l  the  obligors,  their  perfons  or  eftate,  in  a 
different  manner  from  what  they  were  obli- 
ged at  the  time  of  the  contract.  On  a  bond, 
A  and  B- are  joint  obligors  ;  if  the  name  or  feal 
^of  one  is  taken  off,  it  is  deftroy ed  as  to  the  other. 

Charles 


COUNTY  OF  MIDDLESEX,  JULY  TERM.  57 

Charles  and  George,  and  each  of  them,  at  the 
time  of  contracting  with  the  plaintiff,  knew  and 
confidered  that  the  body  and  eftate  of  each  were  Mortimer 


pledged  for  the  fatisfaftion,  or  to  compel  the  ^ 

payment  of  the  debt  :  And  Charles  muft  confi- 
der,  that  the  body  of  his  brother  George  was 
liable  to  be  taken  and  holden  to  compel  him  to 
turn  out  or  produce  his  eftate  (if  any)  for  the 
fatisfaftion  of  the  debt,  as  well  as  his  own  :  — 
This  alfo  the  plaintiff  well  knew,  and  was  the 
legal  fecurity  he  depended  upon.  If  the  Af- 
fembly,  by  a  fovereign  aft,  and  of  a  private  na- 
ture, have  undertaken  to  liberate  the  perfon  of 
George  from  being  liable  to  be  taken  and  hol- 
den to  compel  him  to  produce  his  eftate,  (if  any) 
it  materially  alters  the  original  contract  and  fe- 
curity, both  as  to  debtors  and  creditors.  —  And 
the  creditor,  by  confenting  thereto  (without 
which  the  aft  could  not  operate  to  the  difad- 
vantage  of  Charles,  the  other  partner)  does  as 
effectually  difcharge  the  original  contract,  as  if 
by  his  own  immediate  aft,  he  had  difcharged 
one  of  the  joint  debtors.  —  In  the  prefent  cafe, 
if  judgement  is  rendered  in  favour  of  the  plam- 
tiff,  he  cannot  take  the  body  of  George  —  George 
may  poffefs  large  property,  which  can  eafily  be 
kept  out  of  the  way  of  the  creditor's  execution  ; 
and  his  body  being  exempt,  there  is  no  way  to 
compel  a  difcovery  :  (For  that  is  the  only  folid 
ground  or  reafon  of  the  law  fubjefting  the  body 
to  be  taken.)  Now  the  body  of  George  being 
liberated,  it  neceffarily  cafts  the  whole  upon 
Charles,  effentially  different  from  the  original 
contraft.  It  is  objected,  that  on  the  original 
contraft,  the  creditor,  if  he  pleafed,  might  col- 
left  the  whole  out  of  the  eftate  of  either,  or  take 
the  body  of  either  without  the  other,  and  com- 
pel him  to  produce  eftate  to  pay  the  whole.  — 
True  it  is  foj  but  then  Charles  had  an  equal 
H  chance 


COUKTY  OF  MIDDLESEX,  JULY  TERM, 

V.   '£1  •> 

"77867     chance  with  George,  that  George  might  be  com- 
======     pelled  to  pay  the  whole,  or  at  leaft  the  one  half: 

Mortimer   But  if  the  att  in  favour  of  George  is  operative 

Caldwell  in'tnis  caie»  "  exempts  Geor^f,  and  neceffarily 
calls  the  whole  upon  Charles,  .contrary  to  the 
legal  underilanding  ami  operation  of  the  origi- 
nal contract. 

It  is  further  objected,  that  it  appears  from 
the  law  authorities,  that  by  die  operation  of  the 
bankrupt  laws  in  .England,  where  one  partner 
becomes  a  bankrupt,  the  other  is  nottvith Hand- 
ing fubjected  to  all  intents  and  purpofes,  a* 
though  his  partner  had  taken  no  benefit  there- 
by.— To  which  I  anfwer,  that  the  flatute  re- 
fpecling  bankrupts -in  England,  is  a  general  Tub- 
filling  law  of  the  kingdom,  antecedent  to  all 
debts  or  contracts  which  are  afFcfted  by  it: 
Therefore,  when  a  contract  is  madey£ a. general 
public  law  exifling)  fuch  contract  inuft  be  con— 
fidered  by  the  contracting  .parties,  and  under- 
flood  as  fubjeft  to  fuch  law.  This  is  what  J 
contend  for — The  a£l  now  pleaded,  exempting 
the  body  of  George,  is  a  private  aft,  which  did 
not  exifl  at  the  time  this  debt  was  contracted* 
but  was  made  long  fmce ;  therefore  could  not 
be  had  in  confideration  by  the  parties  contraB- 
ing  :  But  the  laws  then  exifting,  fubjected  the 
bodies  of  both  to  be  taken,  and  held  to  compel 
a.-  fatisfaclion  of  the  debt;  one  of  which  is  fince 
liberated  by  this  aft:  The  plaintiff  and  the  other 
creditors,  have  conformed  themfelves  thereto ; 
which  eflentially  alters  the  original  contpacl. 

Another  point  of  fome  weight  and  confider- 
auon  in  the  cafe  is,  that  the  company  debts  and 
interefts  were  all  made  over  to  George,  and  with 
the  cflate  of  George,  by  a£l  of  law  and  the  cre- 
ditors, was  made  over  to  commiflioners  appoint- 
ed by  the  creditors,  and  the  plaintiff  in  particu- 
lar :  And  which  commiflioners  are  appointed 

and 


COUNTY  OF  MIDDLESEX,  JULY  TERM. 

and  empowered  to  examine  all  debts  and  de- 
mands againft  faid  company,  and  afcertain  the 
fums  due,  and  to  apportion  out  to  the  feveral 
creditors  their  feveral  parts,  as  in  cafe  of  infol- 
vent  eftates,  &c. — and  that  the  fame  ftill  lies  be- 
fore the  commiffioners  unfi  nifhed. — I  am,  there- 
fore, of  opinion,  the  aftion  does  not  at  prefent 
lie  before  the  courts  of  common  law  to  afcer- 
tain the  debt  of  any  creditor,  but  before  the 
commiffioners :  Neither  can  any  certain  judge- 
ment be  rendered  by  this  court  in  the  prefent 
cafe,  as  the  commiffioners  have  not  determined 
what  is  the  plaintiff's  proportion  of  the  eftate 
in  their  hands. 

Upon  the  whole,  it  appears  unjuft,  and  not 
confonant  to  reafon  or  equity,  that  on  a  joint  or 
company  contract  of  George  and  Charles  Cald- 
well,  a  judgement  mould  be  rendered  which 
will  fubjecl  the  body  of  Charles  to  be  taken  and 
imprifoned,  at  the  pleafure  of  a  creditor,  tho* 
no  eftate  in  his  hands,  when  at  the  fame  time 
George  may  have  a  plentiful  eftate,  but  his  body 
liberated,  and  no  means  left  either  for  Charles 
himfelf,  the  plaintiff  or  any  other  creditor,  to 
compel  George  to  difcover  or  produce  his  eftate 
for  the  fatisfaftion  of  the  company  debts,  or  any 
part  thereof,  but  Charles  alone  is  lubjefted,  con- 
trary to  his  original  contract  and  undertaking, 

••  1o  noiBst 


59 


Mortimer 

againft 
Caldwel! 


• 


i» 


imn! 


H2 


:  ifiJ 

WOODRUFF 


60  COUNTY  OF  LITCHIIELD,  AUGUST  TERM. 


WOODRUFF  again/I  WHITTLE, 

fTbe  HP**  IS  was  an  aclion  of  trover  for  a  heifer. — 

-I     Plea,  Not  guilty The  plaintiff  claim- 

ed  the  Propcrty  of  the  heifer,  by  a  transfer  from 
mnsfcrf  om  Nathaniel  Baldwin  Woodruff,  on  the  24th  day  of 

B' 


October,  1783,  in  payment  of  a  debt  due  to  the 
The  defend-   plaintiff  by  note.     Two  witnefles  tediiied  to  the 
fale :  They  faid  it  was  in  the  evening — that  they 
fraudu.   were  only  called  in  to  witnefs  the  bill  of  fale, 
this'point°ft  which  was  written  in  another  room.— They  did 
rcftedhisdc-  not  fee  any  note  delivered  up,  but  underilood 
from  the  converfation,  which  then  paffed  be- 
tween Baldwin  Woodruff  and  the  plaintiff,  that 
a  certain  debt,  due  by  note,  was  the  confidera- 
tion  of  the  bill  of  falc. 

The  only  queftion  was,  whether  the  transfer 
from  Baldwin  Woodruff to  the  plaintiff,  was  frau- 
dulent. The  defendant,  Whittlefty,  was  a  con- 
ftable,  and  at  the  fuit  of  one  Murray,  attached 
the  heifer  in  queftion,  the  i8th  day  of  Novem- 
ber, '83,  as  the  property  of  Baldwin  Woodruff.  It 
was  proved  by  the  defendant,  that  the  pofleffion 
of  the  heifer,  after  the  pretended  transfer  to  the 
plaintiff,  was  not  changed,  till  taken  by  the  de- 
fendant.— That  the  bill  of  fale,  by  which  the 
plaintiff  claimed,  was  dated  one  day  before 
Baldwin  Woodruff- had  acquired  any  property  in 
the  heifer;  and  he. had  frequently  faid,  he  ne- 
ver would  pay  Murray  any  thing,  but  would  put 
his  eftate  out  of  his  hands  to  avoid  it  (though 
it  was:  at  that  time  only  a  right  of  action.) 

Thefe  circumftances  were  urged  by  the  de- 
fendant as  fo  many  indifputable  badges  of  fraud, 
to  which  was  cited,  2  Wilfon's  Reports,  260 — 
3  Coke,  82,  Twine's  cafe — i  Burrow,  467,  Worfe- 
ley,  &?  al  vs.  De  Mattos  and  Slader — 2  Bur- 
row, 831,  Wilfonvs.  Day — Cowper's  Reports, 434- 

The 


COUNTY  OF  LITCHFIELD,  AUGUST  TERM.  61 

The  jury  found  a  verdicl;  for  the  defendant,  "iTg^ 
which  was  accepted  by  the  whole  court.  — 

The  plaintiff's  counfel  then  moved  in  arreft  Woodruff 
of  judgement,  and  for  caufe  alledged, —  wt'^r'r 

1.  That  on  trial  of  faid  caufe  before  the  court 
and  jury,  the  only  queftion  was,  whether  the 
tranfaclion  between  Solomon  Woodruff,  the  plain- 
tiff, and  Nathaniel  B.  Woodruff,  on  the  24th  day 
of  O&ober,   1783,  relative  to  the  fale  of  faid 
heifer,  was  fraudulent,  as  it  refpecleda  demand 
of  one  Philemon  Murray,  upon  faid  Nathaniel 
B.  Woodruff.     And  that  in  evidence,  the  defen- 
dant exhibited  a  writ  of  attachment,  in  favour 
of  faid  Murray,  againft  faid  Baldwin  Woodruff, 
in  an  aclion  for  Jlander,  demanding  forty  mil- 
lings damages;  which  writ  was  dated  the  yth 
day  of  October,  and  ferved  the    i8th  day  of 
November,  1783  :  And  that  faid  writ  of  attach- 
ment, and  judgement  thereon,  was  the  only  evi- 
dence of  any  debt,  on  the  part  of  faid  Murray, 
againft  faid  Baldwin  Woodruff,  which  could  not 
be  confidered  as  a  debt,  until  after  faid  i8th 
day  of  November ;  therefore,  at  the  time  of  faid 
bargain  and  fale  of  faid  heifer,  from  faid  Bald- 
win Woodruff  to  the  plaintiff,  there  was  no  cer- 
tain claim,  debt  or  demand  exifting,  on  the  part 
of  faid  Murray,  againft  faid  Baldwin  Woodruff \ 
fo  as  to  make  faid  fale  fraudulent.  ,slq 

2.  That  one  of  the  jurors  who  tried  faid 
caufe,  had  previoufly  to  faid  trial  given  his  opi- 
nion in  faid  caiife. 

The' motion  was  over-ruled.        Tsfl3  zid      ^'u never 

BY    THE    WHOLE    COURT. ^The   firft    ex-    refort  to  the 

ception  is  infufficient;  becaufe  the  court,  on  ^h^hTve'J- 
motion  in  arreft,  after  a  general  verdict  of  the  fa&  is  foun- 
jury,  cannot  refort  back  to, thev  evidence  on  ground* of 
which  the  verdict  was  founded,  to  fet  it  afide,  *"tfi->  but 
but  muft  render  judgement  according  to:  the  Is  eonci!i-Cr 

1j>  found.  five,  the  faOs 

.       ,    found  by  the 

And 


COUNTY  or  LITCKFIELD,  AUG-UST  TERM. 

And,  upon  examination  into  the  fa6h  alled- 
ged  in  the  fecond  exception,  it  does  not  appear 
that  there  was  any  partiality  in  the  juror,  who 
is  faid  to  have  given  his  opinion  in  the  cafe,  be- 
fore the  trial,  as  he  declares  he  had  no  remem- 
brance of  it;,  and.although  it  was  teitHied  by 
two  young  men  that  they  had  heard  him,  fome 
years  ago,  give  his  opinion  in  a  tranfient  dif- 
courfe,  yet  it  doth  not  appear  that,  that  opinion 
was  founded  on  a  full  knowledge  of  the  cafe,  or 
tiiat  it  had  any  influence  on  his  mind  in  the  trial. 
And  it  was  further  fhown,  that  the  other  jurors 
were  very  unanimous  in  giving  their  verdicl  as 
they  did,  before  they  had  heard  his  opinion* 

lift  bnr 

A  party  10  a       NOTE. — In  this  cafe,  it  was  moved  >  on  the  part 

c"!velyancc,  of  the  defendant,  that  he  might  introduce,  tejlimony 

and  not  a  of  what  Baldwin  Woodruff  had  acknowledged ,  as 

iiiit^cannot  to  the  fraud  in  [aid  j ale. But^-ih  isdl   . 

i*  a  yitnrfs,       jjY  THE  COURT. What  a ptrfon  hath  been 

he  his  "aid,  heard  tofay>  who  is  only  inters/led  in  the  event  of 

when  the  a  fa*  fa£  mt  a  part/y  to  it  cannot  be  given  in  evi- 

parcy  fucd  .•*  r         ,          ,  r  r  r    r       i  •      r  if 

not  Pre-  deuce ;  for  though  a  perfon  may  conjejsjor  mm/elf, 
he  cannot  for  another.  n3ff\ 

f"U^  fl      <\^^^y  ^-y^T*  t- 

It  was  alfo  moved  to  enquire  the  character  of  the 
parties  to  the  fraudulent  conveyance,  as  to  honejly — 
-which  was  over-ruled  by  the  court. 

,-r:i  - 


BILL  againjl  SCOTT. 

a  juf-    "C1  RROR  from  the  judgement  of  a  Juftice  of 

acc  **ds   XL*  the  Peace. Scott  brought  his  action  qui 

good  DC-  tarn,  againft  .Bz//,  for  an  affault  and  battery,  de- 
wibiS*-  manding  damage  four  pounds.— The  Juftice 
iy  tin  the  next  rendered  judgement  for  the  plaintiff,  which  was 

commfn 

pleas,  leaving  it  to  the  difcrction  of  that  court  to  continue  or  difeharge  the  bonds. 


COUNTY  OF  LITCHFI-ILLD,  AUGUST  TERM.' 

recorded  in  thefe  words : — : — "  Watertown, 
"  January  28th,  1786. — At  a  court  for  the  trial- 
"  of  fmall  caufes,  Thomas  Fenn,  Efq.  Juftice  of 
<(  the  Peace  for  Litchfield  county,  prefem  ;— 
"  Elijah  Bill,  of  Watertown,  was  brought  by  a 
"  fpecialty  to  anfwer  to  a  complaint  figned  by 
"  Eliphaz '  Scott,  of  faid  Watertown,  for  breach 
"  of  the  peace.  The  court  opened, — the  delin- 
"  quent,  in  court,  pleaded,  Not  guilty.  The 
"  plaintiff  teftified,:  under  oath,  that  he  was  gui!- 
"  ty;  and  evidence  was  fworn,  examined,  and 

"  the  cafe  heard   at  large. This  court  find 

"  damage  for  the  plaintiff  4!.  lawful  money, 
"  and  iO5.  fine  to  the  public,  and  order  faid 
"  Elijah  Bill  to  find  fufficient  bond  of  ioo/.  for 
"  his  peaceable  behaviour,  and  to  pay  coft,  tax- 
"ed  at  195.  9^." 

Errors  affigned, — i .  That  it  appears  from  the 
record,  that  the  teftimony  of  the  plaintiff  in 
the  action  was  admitted  on  the  trial,  which  -was 
illegal. 

2.  That  the  bond  for  the  good  behaviour  of 
the  then  defendant,  Avas  illegally  taken,  for  that 
no  time  is  fet  when  it  may  expire,  nor  any  re- 
ference had  to  any  court  where  the  plaintiff  can 
obtain  relief  againfl  it. 

And  without  argument,  the  judgement  of  the 
Juftice  was  reverfed.- -For, 

BY  THE  WHOLE  COURT.    '      The  complain- 
ant  who  profecuted,  as  well.for  his_o:wn  damages 
-  as  for  a  breach  of  the  peace,  was  admitted  as  a 
witnefs  in  the  cafe — which  was  illegal. 

And  it  doth  not  appear  from  the  record,  that 
the  defendant  was  found  guilty,  thougrf  he  wiu 
adjudged  to  pay  damages  and  cofls. 

The.defendant  was  bound  to  his  good  beha- 
viour, without  day,  or  reference  to  any  court : 
Whereas,  a  Jufiice  of  the  Peace!  can  bind,  in 
fuch  cafe,  only  to  the  next  court  of  common 

pleas, 


I?' 

I?  ill 

agasr.fi 

bcott. 


' 


64  COUNT.X  OF  JUixcHf  ISLD,  AUGUST 

pleas,  leaving  it  to  the  difcretion  of  that  court 
to  continue  or  difcharge  the  bonds. 

»  ttOi  I  3   A 

'sst  ?«3r*  +** — - —  t  ••>«>  f* 

'•*aM*ta  vn' Jc 

i •*     n  **    ~\  •  •  .  •  >  *^f  /^  %    /V  f\f  H^^I^R^viHl%     *  I  i"l 


PECK  ffgaiiifl  GOODWI:,. 
'HIS  was  an  aftion  of  trefpafs  for  cutting 


to  aibitra-        L     timber. — The  dsfeadant  pleaded  the.,sc- 

tors  tor  their  y.         i    •  rr  TM  '••  •  i-,- 

difpofaias     nerai  iliae. — —1  he  principal  point  in  difpute 
thcy/hvflla"  was>  the  validity  of  a  quit-claim  deed  from- the 

ward  the  ti-  '        r  •   -/  T 

tie;  and  up-  .plaintm  to  the  deiendant,  under  •which  the  de- 
''  ^adant  claimed  title. 

The  cafe  was,  in  1784,  an  action  of .trefpaf* 
^^  pending  bciwcen  the  fame  parti«»'for  dut- 
ting  oh  the, lands  now  in  queftipn.;  both- .claim- 
^Og-    The  controvcriy  was  iubmitted  to  arbitra- 

k  is  made.  rion.  Quit-claim  deeds  from  ea.ch  to  the  othei 
were  executed,  acknowledged,  and  delivered 
into  the  hands  of  the  arbitrators,  to  be  by \them 
difpofed  of  as  they  mould  aw.ard  the  title.  >T-hc 
arbitrators,  upon  hearing,  awa*de.d>fl>e  t;tk,tl> 
be  in  Goodzviit,  the  defendant,  and  delivered  to 
him  the  deeds.  There  was  fome  contention  at 
the  trial,  whether  Peck  did  not  forbid  the  deli- 
very of  the  deed  after  the  arbitrators  had  pub- 


,>  :.^*A  iiiucu  their  award  :  But  the  Court  faid  it  was  im- 
}  material,  for  the  publifliing  :th«-aw^ird  was  the 
.'^        .  i   condition  otthe  delivery ;  that  bein^perforjn- 
ed,  the  deed  became  abfolute.     And  although 
the  fee  of  lands  cannot  be  transferred  by  award 
of  arbitrators,  yet  it  may  wrell  be  done  by  deed, 
,  D  as  in  this  cale. 

The  jury  focind  a  verdicl  for  the  defendant, 
which  was  accepted  by  the  whole  court. 


COUKTY   OF   LlTCHFlXLD,  AUGUST  T£RM» 

BOSTWICK  againjl  NICKILSON. 

ACTION  on  the  cafe  for  words,  refpeBing 
the  plaintiff  in  his  nrofeffion,  as  attorney  evidence* 

shall  not  be 
at  law.  given  of  fpc- 

The  declaration  concluded  with  thefe  words  : 


—  "  That  by  rcafon  of  the  defendant's  uttering  " 

Tt  and  publiihing  the  falfe  and  fcandalous  words  «he  dccUn- 

"  afarefaid,  thofe  who  ufed  to  employ  him  in 

"'  their   cafes    and   important   concerns,    daily 

"  withdraw  themfelves,  their  bufinefs,"  &c. 

The  defendant's  council  fuggefted  to  the 
court,  that  the  plaintiff  had  alledged  fpecial 
damage;  and  therefore  moved  to  enquire  whe- 
ther any  had  been  fuftained. 

Mr.  Reeve,  counfel  for  the  plaintiff,  denied 
that  thofe  words  in  the  declaration  amounted  to 
an  allegation  of  fpecial  damage  ;  and  cited  the 
cafe  of  Browning  Vs.  Newman^  i  Stranget  666  ; 
alfo  Built  T*S  Niji  Prius,  jth  page. 

BY  THE  COURT.  -  This  declaration  is  ge- 
neral ;  there  are  no  damages  fo  particularly  fc't 
forth,  as  to  ground  a  fpecial  enquiry. 


A6tion  for 
.  .  falfe    Jmpri. 

STODDARD  againjt  BI"KD,  fonmcmmay 

be  maintain* 

A   CTION  of  trefpafs  for  falfe  imprifonment.  cd' vhe  e 

i\  T~t-  •  tr    r>.       one  procures 

^  J^  1  he   declaration  itates,  that,  "  On  rroccfs 

"  the  26th  day  of  September,  A.  D.    1783,  in  Vlt?ou'  . 

«c  .1  i         n  •     f         •        T^  r      '  caufeofaAi- 

tne  nortneait  precinct,  in  Dutchefs  county,  on,  &caufe» 
"  ttate  of  New-York,-  (vithin  the  county  of  Liich-  '%$£$& 
"field)  with  force  and  arms,  a  high  handed  af-  defign  to  ex- 
;<  fault  on  the  body  of  the  plaintiff  the  defendant  gl 
"  did  make,  and  did  then  and  there,  without  without 
'*  law  or  right,  in  a  fpiteful  and  malicious  man- 

I  "  ner 


6$  COUNTY  or  LITCHFIELD,  AUGUST  TERM. 

TTSifr     "  ner»  ta^e>  Teize,  and  caufe  to  be  arrefted,  fche 

"  body  of  the  plaintiff,  and  with  the  fame  force 

^.dard     <(  and  arms  him  did  unlawfully,  \\  rongfuUy,  ajul! 

lh-H?      " falfly  imprifon,  hold,  abide  and  reftram  from; 

1C  his  liberty  for  the  fpace  of.tl-.ree  days,  until  he' 

lt  did  make,   caufe  and  compel. the  plaintiff  to' 

ir  pay  large  fums  of  mone) ,  in  order  i 


The  general  iffuc  being,  pleaded,  .the  cafe  ap- 
peared to  be  thus':—  The  plaintiff  way  ad'.niiii- 
drator  on  the  cfiatc  of  J-Ji^h  ^ 
fed:  He  had  made  a  reprefemaiion  of  mfvl- 
vency  to  the  court  of  probate  for  the  difh 
^liaron;  .'comniiflioncrs  had  been  appointed, 
who  received  and  examined  the  claim:,  exhibit- 
ed againft  the  eitate,  and  had  reported  -the  fame 
.to  be  infolvent.  No  average  had  been  made  to 
the  creditors,  or  ordered  to  be  inii.de  by  \\v, 
court  of  probate,  but  was  flill  pejadjnpr  r,TO& 
defendant  had  exhibited  a  debt  of  thirty-fix  fhi'l- 
lings  lawful  money  againft  laid  cftate,  to  i 
commiflioners,  previoufly  to  the  imprifonmc 
complained  of,  which  was  .allowed.  —  While 
'thefe  matters  were  thus  pending  before  the  court 
of  probate,  the  plaintiff  being  in  the  ".dale  of 
New-  York,  the  defendant  there  applied  to  a 
Juflice  of  the  Peace,  and  prayed  out  a  capias 
againft  the  perfon  of  the  plaintiff,  for  the  Tame 
debt  of  thirty  (hillings,  which  had  been  exh^u 
ted  to  the  comrnilfioners,  as  a  claim  againft  the 
eftate  of  Stodciard>  deceafed.  —  -The  plaintiff  was 
taken  by  virtue  of  this  .writ,  carried  before  .the 
•]  lift  ice,  there  held  in  cuftody  till  he  procured 
ipecial  bail,  and  was  held  to  a  trial  ;  on  .wh.ichj 
iudeernent  w-as  rendered  againft  him  for  debt 

J       ,"        „  •      •'.>        9  TO  JJt   3TIJ 


m-  rfj  ni  \       Tl     Ifl  •  r,  . 

It  was  noV  agreed  by  the,  parties,   ror  did  it 

appear  on  'trial,  whether   the  proccfs  iffued  by 
the  luftice  was  regular,  and  coi.fifteiH  with  the 

'  ,   •  •  t     v  •    ; 

laws  of  the  ftatc  of  New-  York. 


r  -  •>.  *  I 

COUNTY  or  LITCHFIELD,  AUGUST  TERM. 

Mr.  Reeve  and  Mr.  Tracy,  for   the  plaintiff,     ""rjJjiS 
urged  that  Luther  Stoddard,  the  plaintiff,  was 
not  liable,  by  the  laws  of  Connecticut,  to  any    s^a*d 
kind  of  fuit  for  the  debt  which  \Bird  had  exhi- 
bited to  the  commiflioners,  during  its  pendency 
before  the  court  of  probate.     The  procefs  imied 
by  the    Juftice  was  illegal,  and  not  warranted 
by  the  laws  of  the  ftate  of  .New- York  j  for  the 
claufe,  at  etiam  billce,  could  not  legally  be  in- 
ferted.     The  Britifh  ftatute  of  the   13.  Car.  2, 
which  prohibits  the  inferting  of  that  claufe,  a- 
gainft  executors  and  adminiftrators,  has  been 
explicitly  adopted  by  the   ftate  of  New- York. 
But  admitting  the  form  of  the  writ  to  have  beqn 
regular,  Stoddard  ought  not  to  have  been  ar- 
refted ;  the  ufual  return  of  common   bail  ouiy,' 
mould  have   been  made  :  Therefore,  the  fuit 
being  groundlefs  in  the  firft  inftance,  and  ille- 
gal in  the  procefs  and  execution,  the  defendant 
who  procured  it,  with  a  wicked  intention,   was 
guilty  of  a  trefpafs,  and  muft  be  liable  to  refpond 
in  damages. 

P  \*J       "-'    ' 

Mr.  Root  and  Mr.  Canjield,  for  the  defendant/ 
admitted  the  laws  of  this  ftate  as  urged  on  the 
other  fide,  but  denied  that  by  the  laws  of 
ftate  of  New- York  any  other  form  or  proccb: 
could  have  been  iffued,  than  the  one  iflucd  by 
the  Juftice.  If  fpecial  bail  was  not  required  by 
law  in  cafe  of  an  adminiftrator,  the  officer  di 


wrong  not  to  make  return  of  common  I 
difmifs  Stoddard:  But  this  would  be  the  wromi 


falfe    imprifonment    can    be '  fuftained    a^ainft' 
Bird  for  the  ad  of  the  officer. 

If  there  was  any  informality  in  the'WrfL?8f 

if  the  aftion  was  not Tuftainable  before  the   fuf- 

tice,  Stoddard  has  waved  all  advantages  wl 

he  might  have  derived  from  that  quarter,  by  not 

'  "Ta  pleading 


COUNTY  OF  LITCIIF IILLD,  AUGUST  TERM. 

pleading  in  abatement  at  that  time.  As  he 
pleaded  to  the  merits,  he  acknowledged  the  ju- 
rii'diction,  and  admitted  the  legality  of  the  pro- 
C£&;  and  the  judgement  being  rendered  againft 
him  on  that  iffue>  it  is.  to  be  prefamed  that  the 
of  aclion  was  well  fupported,  according  to 


the  laws  of  that  (late. — — Lord  Raymond,  229. 

Trcfcot  vs.  C&rptntcr  and  Mann. The  pre- 

'*i3nav,  ...  lent  aBion   is   entirely    misconceived ;    for    if 
-o^nTo^ui  Stoddvrd  ^as  any  right  of  action,  it.  muft  be  cdfi? 
and  not  trefpafs. 

The  jury  found  a  verdia  for  the  ptaintHf  yrrti. 
on  which  the  court  delivered  the  following  opi- 
nions : 

Judge  ELLS  WORT  n. — Right  of  action  againil 
an  adminiftrator  is  tranfitory,  and  the  action 
may  be  brought  whenever  he  is  found.  And 
though  he  is  not  to  be  arrefted  according  to  the 
mode  of  procefs  in  this  ftate,  he  may  be,  for 
ought  appears  in  the  ftate  of  New-York.  And 
the  prefumption  is  he  may,  beca'ufe  the  autho- 
rity there  iffued  a  warrant  to  make  the  arreft, 
and  held  him  to  trial  upon  it. 

As  to  the  fuit  there,  being  without  caufe,  andi 
vexatious;  this  is  not  to  be  intended,  but  the 
contrary,  after  a  judgement  in  the  plaintiff's  fa- 
vour, on  a  full  trial  upon  the,  merits;  but  if  it 
fo»  yet  if  the  arreft  and  holding  was  by  a 
vpracetpt,  an  action  of  falfe  imprifonment 
is  ewrt rithfe  pwroper  remedy,  but  an  acYion  on  the 
cijfe»i  vOib upon, the  ftatute  againft  vexatious  fuits, 
I-thipk^no  trefpafs  is  here  proved;  and  there- 
fore that  the  jury  have  found  wrong- 

Judge  PITS. IN. — -As  it  appears  that  the  ad- 
nfriniftrator  conducted  properly,  he  ought  to  be 
pFotefted,  otherwife  noperfon  would  be  fafe  in 
that  fituation.  The  laws  of  this  ftate  undoubt- 
edly protect  adminiftrators  from  arrefts  on  ac- 
count gf  the deceafed  whom  they  reprefent:  For 

if 


COUNTY  OF  LITCHFIELD,  AUGUST  TERM.  $a 

if  irwas  otherwife,  and  they  might  be  legally     ~~^ 
arrefted  in  this  way,  whenever  they  mould  hapl     *2££* 
pen  to  go  out  of  the  ftate,  they  would  be  liable   Stoddard  ; 
to  be  ruined  :  Therefore  I  think  the  procefs  was     W- 
illegal,  and  the  fuit  unwarrantable  *»rdrt 

--Wg9  SHERM  A  ».-— Undoubtedly  there  are  ft 
infence.  where  one  may  make  ufe  of  legal  au-  2L"S  o< 
thorny  m  fuch  manner  as  to  become  liable  to  lefi'i ailth°- 
the  aaion  of  falfc  imprifonment :  As  where  one)  mL?r  ™ 
wUl  arreit  another  by  legal  authority,  without  becoi"e  l  a' 
any  caufe  of  aBion,  and  not  return  the  writ,  &c.s  Son  fo"fi£ 

in  this  cale  it  does  not  appear  but  the  fuit  imPrifolu 
was  legally  inftituted  agreeably  to  the  forms  of  " 
that  ftate;  and  the  prefumption  is  rather  that; 
way,  for  the  aftion- went  to  trial,  and  judgment 
was  rendered  by  court  and  jury  againft  the  pmi 
fent  p  aintiff.     I  think  that  io  far  jiiftifi^^L 
traniattion    that  this  kind  of  remedi  i,  notJS 
phcabJe  to  the  fuppofed  injury.     I  am  AerdSai 
of  opinion  the  jury  are  wrong. 

>%.  DyER._£very  caufe  will  have 
own  peculiar  complexion  and  leading  caft    Tte 
f»««  here  are  conceded.     The  action  of  1 


. 

always  .goes  on  thu  ' 

the  impVifonment  compiained  of  ri 
wrong.?     If  it  appeariP(0 

on  th 


this  cafe- 


co,  w       '" 

"I1  recover 
was  net  bound, 


tended  i      I  ,h-  lr.««  *''icli  l 
iOetfro  -Ithinkhe  hadnorigtu  to  do  h- 


70  COUNTY  or-  LITCHFI  ELD,  AUGUST  TERM. 


786?     ^'^  ^ere  was  a  -writ  taken  out  to  arreft  the  body 
_=:=     qf  Stoddard.     Did  he  mean  to  have  fuch  a  writ  ? 
Scoddard  He  undoubtedly  did,  for  no  other  would  an- 
^wer   k*s  purppfe.     The  intention  and  defign, 
then,  was  wrongful,  and  the  aft  injurious  ;  —  fo 
that  I  cannot  fee  but  the  jury  have  done  right. 
LAW,  Chief  JuJlice.—~—  So  far  feems  to  be 
agreed,  that  the  defendant  has  done  wrong: 
The  only  queftion  is,  whether  the  plaintiff  has 
chofen  his  proper  and  legal  remedy.     There 
are  many  cafes  where  a  man  may  have  two  re- 
medies for  the  fame  injury  :  He  may  then  make 
his  election  which  he  will  -pin-fae;     The  law 
means  that  a  remedy  mail  be  provided  for  every 
wrong,  that  will  do  equal  juftice  to  both  the  par- 
ties.    Will  this  aftion  do  compleat  juftice  ?  1 
am  not  certain  but  it  will  do  as  ample  juftice  as 
any  other.  -  There  is  no  evidence  but  that  the 
defendant  applied  for  jufl  fuch  a  writ  as  was  if*. 
fued'  and  ir  is  nioft  reafonable  to  fiippofe  that 
he  did,  and  that  the  officer  conducted  rightly, 
and  agreeably  to  the  precept.     The  plaintiff  has 
confequently  been  injured  by  the  procurement 
and  wrong  aft  of  the  defendant.     I  am  there- 
fore of  opinion  the  verdift  is  right, 
It  was  accordingly  eftabliffied. 

orfj  lo  gaiJnw 

ion  bluoD  bns 


nr 


W'       BENEDICT  againfl  BROWNSON. 

A  Witnefs  ;.  TN  this  cafe  the  plaintiff  offered  a  witnefs,  who 
not  admiffi-  |_    h  d  engaged  to  pay  his,  the  plaintiff's,  at- 
torney  SSRfc*  the  fuit'fthe  plaintiff 


oi,ie  to  re-  bei  a'pO(>r  man),  and  had  a  promife  from  the 
XTSffirf  plaintiff  that  part  of  the  avails  of  the  iuit,  if  a 
£ouf"h 'if  recovery  was  had,  foould  be  applied  to  the  pay- 

the  party  ..  , 

was  indebted  to  him,  and  had  no  vifiblc  means  of  payment  but  by  recovery,  that 
alone  would  not  exclude  him. 


GOU-KTTY   OF   Ll'TCHFlELD,  AUGUST  TERM. 

• 

oient  of  a;debt  tben'due  ttf  the  witnefs  from  the 

pl^iatiff.-^TTT-^ttfi0*  n£ 

i}.,*     ,,  CLmH^-rr*^— -*— P>  it  irvt^rH-i^rl  and  m-      ht- 


.— , 

THE  Coy*T.-T-^~He  i*  interefted  and  in- 

16  fhare  the  be-. 


neCoCjIferesp^r^if^fc  JS-'fead  :  TOofofffj  if 

Ju: ~Oi^«    ,,^^+»f^^  r&>w*n*A5*W4*yni£H;}+   thc^ 

r* 


i>laiHiiJrV^f:ii^eU€d4ehim;  and  had  no  vilrble 
means  of  payment;!  excepting  by  a  reccwerv,  it 
would  not  e-x G-ljo.de  him,- — Thai;  pomi.  lias  i. 
long  decide^  v;3T  Ifigsi  bnB  isqoiq  * 

Sri! vs^sH  ^"Ifl*1  SL  ?5i>tJfT! 

HT     .•.u.riiuT^" 


\Qadminijlrator  on  the  eftate  of 
fcfi.o-, lilL'^ABW BAfbgairifi  PH E LPS. 

THIS  was  an  aBion  of  book  debt. The. man  adion 
''account  exhibited  confifted  of  one  article 
only,  '(to  tuit)  twenty  half-jo hannes.    The  char.ge  an 
was  not  in  the  hand  writing  of  the  deceafed. 

:  Ivlf.  JAdam$t  for  the  defendant,  moved  that 
the  plaintiff  be  compelled  to  produce  the  origi- 
nal entries  of  the  deceafed,  or  fuffer  u  non+fuit^ty  neeefla 

Mr.  Hitman,  for  the  plaintiff,  ftatedx  that  by  ^  "' 
accident,  the  original  entries,  which  were  in  the 
hand  writing  of  the  deceafed,  were  totally  loft, 
and  could  not  be  produced—That  the  account 
exhibited  was  made  by  the  attorney,  in  confe- 
quence  of  directions  received  from  the  decea- 
fed, in  his  life  time— That  the^plaji^t^  could 
.prove  there  had  been  a  charge  in  the  Hand  wri- 
ting of  the  deceafed-,  exaftly  ccirre(jk>ridh>j*  Ui\f»l 
the  one  exhibited  on  trial,  and  that  the  deceafed- 
had  declared  the  fame  to  be  a  juft  charge. 

Mr.  Adams,  in  reply,  faid,  that  if  adminiRra- 
tors  were  permitted  to  iuftain  actions  on  accoun, 
made  by  them  in  favour  of  the  decesrfed,  fron» 


71  COUNTY  or  LITCHFIELD,  AUGUST  TZRM. 

^iT??*     ^u°k  informati°n  as  they  might  be  able  to  col- 
=====     left,  their  would  be  no  guarding  againft  unjufl 
Leavenfw.  demands  of  this  kind :  For  if  the  original  papers 
ag*i*ft     were  produced,  it  might  appear  from  them  that 
P5'     the  account  had  been  fettled,  or  that  the  articles 
were  delivered  in  difcharge  of  fome  antecedent 
demand ;  or  much  other  light  might  be  reflect- 
ed on  the  fubjecl.     That  an  original  entry  was 
a  fpecies  of  evidence  indifpenfibly  necefiary  to 
fupport  a  demand  of  this  kind. 

BY  THE  COURT.- The  aftion  may  pro- 
ceed without  thofe  entries ;  for  if  the  demand, 
under  all  the  circumftances  of  it,  mould  not  be 
fufficiently  fupported  by  evidence,  the  aftion 
muft  fail.  The  charge  in  the  hand  writing  of 
the  deceafed,  can  only  be  evidential  of  a  right 
of  recovery,  which  may  be  fupplied  by  other 
evidence,  of  as  great  or  greater  weight. 


M'DONALD  and  Others  again/I  LEACH. 

dc'«i  r«-     A    CTION  of  diffeifin  : — The  general  iflue 

wnCciebrka  ****  pleaded. The  cafe  was,  that  in  the 

10  be  recor-  year  1775,  Daniel  Bojlwick  was  negociating  a 
«d^  ofdtha"  loan  of  money  of  M< Donald,  of  the  ftate  of  New- 
kind  made  York.  In  order  to  obtain  the  money,  he  made 
ffilfccwea  a  mortgage  deed  to  M'Dcnald,  of  the  land  in 
lidan!°l?em  ^ue^on>  carried  it  to  the  regiftcr  in  New-Mil- 
-fhed'ay  iT"1  ford,  where  the  land  lay,  who  received  the  deed. 
re~  anc*  made  an  entry  on  the  back,  "  received  for 
t  any  recording."  At  the  fame  time,  the  rcgifter 
teme5  in  v™te  a  certificate  direttcd  to  M* Donald,  that 
•rhichthc  Bojlwick  had  lodged  fuch  a  deed  in  his  office, 
lorfcdV6'  -which  was  entered  on  record.  Bcjiwick  alfo 
told  the  remitter  not  to  record  the  deed  at  that 
'time.  The  recifter,  accordingly  wrote  on  the 

deed 


COUNTY  OF  LLTCHUIJ.D,  AUGUST  Tsy .  ^ 

deed  below  the  entry  firft  made,  «  «  record,"  :r~~ 

atnd  placed  the  deed  in  a  bundle  of  the  fame,  =W 

kind,  where  it  remained  till  about  the  year  1783-^  M<D- 
Bcjiwick  carried  the  certificate,  which  tbe  reVi- 

({f1  cn  ]™'  '59  4?£^M  a«'d  prqcu^e'd 

the  n.  Some  years  after  Bollwicti  convey- 

ed th  ]and  to  ^,s  Kicktljoni (ksiz  ao- 

p  oe  no  embarraflmcnt  to  the  title,  on 
Nickelfon  conveyed  to  the  defend- 
ant ?>  both  ot  wnicb  deeds  were  recorded  at  full 

&gj^9i^§fpS^y?ss 

Vexed  that  his-,deed  hnd  n^r^t- li^-  -i     :. j-  •>  _ . 


at 

diti 


v-    v^.u^c,   iuu/iu  ic 

|^^^,^f-fecc)i:de^ <-and  then  broughi 

Tl-?  C  H/^Tl^IKi  r>rt> 

41tarva.s.LtyiO  '  j          i  •' 

n»  a       JL*^  nnRrt  «»rf«   «r  *,^  .-  -r- 


M7iUWMdlS 


•id  Mr.  J?^ir,  for  the  plaintiff.— 
.^H  r.  Me,ed  havil^g  been  lodged  with  the 
regifter,  ,  entry  made,  that  it  was  recei- 

ved for   recording;  the  regifter  was  bound  to 
>erfed  the  record;  and  no  orders  to  the  con- 
trary either  from  grantororgrantee,  could  go- 
vern him  -By  the  (latute  refpecling  deedsf  it 
H  enaaed    «  That  no  grant  or  deed,  of  bar- 
..  ^?ffl>AxJf'  or  Mortgage,  made  of  any  houfes 
ands  within  this  flate,  mall;b'e'  accounted 
ood  andeffeaual  in  law  to  hold  fucli  .bouies 
and  lands  againft  any  otl>€F-perf( 
<r  whatfoever,  but  tiie  grantor  :or  a 

.  ^i      f-  K  ^.  C  i.      L.  _  *  ^_  t.  .  |         „ 

;  uaied'lfe^, 


o  Me.  :     .    .    ,  »MHu«g 

c   A     j     t  .iiOfff:>ffr>       >rf*"»>bti 

And  the  town  clerk,  or  t^^T^^rm^^y 
>wn  jn-this  ftate,  /hall,  on  the  mcetet  of  arrv    -«T<a«» 
.«  ?    ^  deed)  €onveya«cc,:»rjjriorrgage.^  arw^,  w'J-?* 
^  n  Jand  brought  to  Mm.toTf tcg-^j  9^ r;J  "" 

t    bi  ^ 

t— »_ 

E>9oi'/y 
«4j^tj» 

.„,«-»«. ,.«.«.._ 


74 


1786.  The  latter  claufe  of  this  ftatute  is  in  fome  de- 
*====  gree  explanatory  of  the  firft,  and  mows  that  the 
M'Donald  entry  of  the  regifter  on  the  deed,  and  the  lodging 
agamft  jt  jn  fae  office,  is  in  judgement  of  law  a  record- 
ing, fo  far  as  to  fecure  the  title ;  and  when  com- 
pleated,  the  title  by  relation  becomes  perfeft 
from  the  execution  of  the  deed. — See  Cowpcr's 
Reports,  705,  Doe  vs.  Routkdge — i  Burrow,  474, 
Sir  Edward  Worjley,  vs.  Demattos  and  Slader. 

Mr.  Ca-nfieldand  Mr.  Everitt,  for  the  defen- 
dant, faid,  that  the  conduci  with  regard  to 
McDonald's  deed  had  been  fuch,  that  if  it 
mould  be  eftablilhed,  it  would  operate  as  a 
fraud  upon  the  prcfent  defendant.  He  pur- 
chafed  when  no  incumbrance  on  Bo/lwick's  ti- 
tle could  be  faund  on  record  j  therefore  he  had 
the  faireft  grounds  to  prefume  none  exilled.  He 
had  purfued  every  legal  method  to  authenticate 
his  title,  and  ought  to  be  fecured  in  the  enjoy- 
ment of  it. — If  the  fame  care  and  attention  had 
been  practiced  by  M*Donaldt  no  injuftice  could 
have  taken  place. 

That  McDonald's  deed,  appeared  not  to  have 
been  delivered  to- the  grantee  at  the  time  it  was 
lodged  in  the  office  of  the  regifter ;  neither  had 
the  confideration  been  received :  Therefore  the. 
deed  was  not  valid,  and  the  entries  of  the  regif- 
ter were  of  no  more  confequence  than  thofe  of 
any  other  perfon.  No  fubfequent  a6l  of  M'Do- 
nald could,  by  the  do6lrine -of  relations,  reftore 
a  title  which  was  defective  in  its  origin. 

It  was  obferved  from  the  Bench,  that  the  Ju£- 
tice  who  took  the  acknowledgement,  had  figned 
himfelf  as  a  witnefs  to  the  delivery,  which  was 
an  evidence  of  that  fa£t,  of  too  high  a  nature 
to  be  doubted. 

The  jury  found  a  verdi6l  for  the  plaintiff, 
which  was  accepted  by  the  whole  court. 

ELDRIDCI 


COUNTY  o*  LITCHFIELD,  AUGUST  TERM. 


ELDRIDGE  again/I  LANE  and  ROSEVZLT. 

In  Chancery. 

THE  cafe  was,  That  on  the  loth  of  March, 
A.D.  1783,  the  petitioner,  together  with 
one  Jojlma  Wells  and  Samuel  Doud,  became  ob- 
ligated to  Jared  Lane,  one.  of  the  refpondents, 
in  the  fum  of  167  /.  165.  lawful  money.  —  Welh 
and  Doud,  in  confideration  that  the  petitioner 
had  become  bound  for  them,  on  the  fame  day 
executed  to  him  an  indemnifying  bond,  of  fur- 
ficient  amount  to  fave  him  harmlefs.  —  In  March 
1784,  Lane  put  the  faid  obligation  in  fuit,  and 
recovered  a  judgement  for  i8o/.  45.  nd.  —  The 
execution  was  levied  on  the  petitioner's  lands, 
and  the  whole  contents  fatisfied  with  his  proper- 
ty.r  —  In  September,  1784,  the  petitioner  reco- 
vered judgement  againft  Welh  and  Doud,  on  the 
indemnifying  bond,,  for  2Og/.  35.  4</.  and  ii5/. 
is.  lod.  on  another  obligation  againft  them.  — 
On  the  28th  day  of  January,  A.  D.  17.85,  the 
petitioner  caufed  the  executions  which  iflucd  on 
thofe  two  judgements,  to  be  levied  on  a  farm 
of  land  belonging  to  Doud,  which,  on  the  2ift 
day  of  June,  1777,  was.  mortgaged  by  Doud  to 
Lane,,  to  fecure  the  fum  of  350^  lawful  money, 
and  intereft,  due.  by  bond  of  the  fame  date,  and 
payable  the  2Oth  day  of  Jur/e,  1779.  —  A  pay- 
ment had  been  made  oa  this  bond,  ackno\vl<  'd- 
ged  by  a  receipt  in  thefe  words  —  "  Receive.  1  of 
"  Mr.  Samuel  Doud,  this  i^th  day  cf  Oft 
™  1778,  the  intere/l  of  a  bond  given  by  y/?/...' 
"dated  June  zift,  1777,';^^  due'j,< 
*  1779,  an<l  ls./°r  the  jum  cf  350^  Tai:> 
"  likewi/e  250/.  of  the  principal  of  fa,. 
"  ceived  this  day,  &c. 

The  petitioner  fuppofcd  at  tl 
K 


76  COUNTY  OF  LirchTi^Ln,  AUGUST  TERM. 

his  executions,  there  was  no  greater  lien 
upon  the  land  than  ioo/.  and  the  intereft  there- 
Eldridge  of  from  the  26th  of  June,  1 779.  This  land  was 
'  apprailed  to  the  petitioner  at  the  fum  of  his  two 
Lane,  &c.  executions,  under  the  fuppofed  incumbrance 
of  ioo/.  only.  After  the  petitioner  had  ctim- 
pleated  his  levy  on  the  land,  Doud,  with  a  de- 
fign  to  defraud  the  petitioner,  carne  to  an  agree- 
ment with  Lane-  to  adrriit  there  was  dill  due  on 
the  mortgage  about  400?.  and  to  relinquish  all 
right  and  title  to  the  equity  of  redemption,  and 
furrender  the  mortgaged  land  to  Lanet  in  fatis- 
faclion  of  what  was  then  due.  This  agree rrrent 
was  carried  into  execution  by  the  parties,  ac- 
cording to  the  forms  of  law. 

That  at  the  time  the  petitioner  levied  his  exe- 
cutions on  this  land  there  was  not,  nor  had  there 
been  at  any  time  afterwards,  any  other  eftate 
of  Doud  or  Wells,  which  he  could  obtain  :  And 
that,  in  all  thefe  tranfaftions,  Lane  a6ted  for 
Jfaac  Rofevdty  of  the  city  of  New-York ;  to 
whom  he  bad  conveyed,  by  deed  of  rebate,  all 
his  title  to  faid  lands. 

It  alfo  appeared,  that  the  payment  made  on 
the  bond,  and  acknowledged  by  the  receipt  as 
lawful  money,  was  in  facl:  continental  money, 
about  feven  eighths  depreciated. 

The  prayer  of  the  petition  was,  that  Lane  and 
Rofevelt  be  competed,  under  a  fuitable  penalty, 
to  quit-claim  faid  land  to  the  petitioner,  on  pay- 
ment of  the  fum  of  ioo/.  atid  the  intereft  there- 
of from  the  2Oth  of  June,  1779. 

The  court  decreed,  that  the  petitioner  might 
redeem  upon  paying  the  amount  of  the  mortgage 
monies  due,  deducting  the  payment  made  by 
Doud,  at  the  nominal  fum. 


BRADJLP.  v 


COUNTY  OF  LITCHFIELB,  AUGUST  TERM.  77 

k^EZ; 

BRAOLEY  «nrf  02A*rs  again/I  CAMP, 

. 

ERROR  from  the  court  of  common  pleas, 
on  a  bill  of  exceptions. The  plaintiffs 

being  truftees  to  the  infolvent  eftate  of  Reynold 
Marvin^  Efq.  brought  their  aclion  of  book-debt  iaw,  nabie 
againft  the  defendant,  Joel  Camp.     The  gene- 
ral iflue  was  pleaded  and  joined  to  the  court ; 
and  a  judgement  rendered  for  the  defendant. —  ietlueilulwl_ 
The  cafe,  as  it  appeared  on,  trial,  was  then  fta-  thcr  partner, 
ted  in  a  bill  of  exceptions,  and  certified  by  the  JJea"°£j. 
Judge.* — Some  time  iri  the  year  1759,  the  de-  nership  b»fi- 
iendan-t  entered  into  a  copartnerfhip  trade  with  p^^ol 
Silas  Bingham,  which  extended  only  to  the  pur-  tice  i*  giv- 
chafing  goods   from   a   certain   Mrs.  Webb,   at  f0nlu°:0j .  and 
\Veathersfield,  as   occafion  fhould  require,  to  on  a  joint 

r         i  n  •        o    i  •  1 1  -i  f   contract,  n 

fupply  a  itore  in  Sahibury,.  in  the  county  .  ot  011C  only  be 
Litchfield,  for  the  purpofes  of  retailing.     This  fted,  his 

n-  i-rr   i         i    •       ^  x  r        \  matter  of  a- 

partnerlhip  was  diliolved  in  iviay  1762,  by  mu-  batement, 
tual  agreement.     The  diffolution  was  publifh-  buc  no  ad" 
ed,  by  a  declaration  in  the  hearing  of  feveral  be  tai 
perfons  who  were  called  as  witaefles ;  and  ne- 
ver piiblilhed  in  any  other  manner,  but  was, 
however,  generally  known  in  the  town  of  Sa- 
lifbury. — By  the  dilfolution,  all  debts  due  the 

company 

*  Note.— —The  propriety  of  introducing  Bills  ofexcep- 
titns  in  this  manner,  has  been  queftioned  by  fome. — There 
are,  however,  in  Engliih  books,  many  precedents  for 
this  practice— (vid.)  Douglafs*  Reports,  363,  Blaqnier\s. 
Haivkins. — i  Blaekjlone1  i  Reports,  555,  Money  vs.  Leach. 
—Cowper,  t6i,  Moftyn  vs.  Fabrigas.  And  there  may, 
perhaps,  be  much  more  reafon  for  adopting  fuch  a  praftice 
here,  where  many  queftions  of  law  are  fubmitred  to  the  ju- 
ry ;  and  if  a  fpecial  verdict  be  found,  no  other  relief  can 
be  had  againft  an  erroneous  judgment-:  Bat ,;  in- -this  cafe  the 
mode  of  bringing  it  up,  was  not  contended,  and  no  opinion 

of  court  taken  upon  the  fqbjecl. Since  the  trial  of  this 

caufe,  the  mode  of  bringing  up  a  caufe  by  bill  of  exceptions, 
nnder  like  circumftances,  has  been  adjudged  illegal.  See  the 
•cafe)  Fleming  againft  Fijbfr  and  £a/</ivin,  reported  at  large. 


inc. 


COUNTY  OF  LITCHFIELD,  AUGUST  TERM. 

comPany  became  the  property  of  JKngham,  who 
became  obligated  to  pay  all  debts  due  from  the 

Bradley     company;  and  for  that  purpofe  gave  to  Camp  a. 

Agamjt  promiffory  note  for  28oo/.  conditioned  to  in- 
demnify againft  all  demands- upon  the  parfner- 
fhip.  Camp,  at  the  fame  time,  received  about 
aoo/.  for  his  dividend  of  the  profits  which  had 
accrued  upon  their  joint  trade. 

The  account  of  faid  Marvin,  exhibited  on 
trial,  ftood  charged  to  Camp  and  Binghatn,  in 
company.  It  contained  only  charges  for  cam 
advanced,  and  fervices  rendered,  as  attorney, 
in  profecuting  fundry  fuits  at  law,  commenced 
in  the  name  of  Camp  and  Bingham,  for  the  col- 
lection of  debts  which  accrued^to  them  in  the 
courfe  of  their-  partnermip  trade. — This  bufi- 
nefs  was  undertaken  upon  the  application-  of 
Bingham,  in  the- month  of  Auguft,  1762,  fubfe- 
quent  to  the  diffolution  of  the  partnermip,.  he 
being  the  acting  partner. — Marvin,  living  in 
Litchfield,  did  not  know  of  the  partnermip  of 
Camp  and  Bingham,  until  he  was  requefted  to 
undertake  this  bufinefs ;  he  was  then  told  it  was 
a  company  affair — which  alfo  appeared  from  the 
face  of  the  accounts  ajid  notes  to  be  pu-t  in  fuit ; 
and  he  was  not  then  notified,  nor  did  he  at  any 
time  know  of  the  diffolution.  At  the  fame  time 
this  bufinefs  Was  undertaken,  he  did  bufinefs  for 
Bingham,  as  an  individual. 

Camp  had  no  knowledge  that  thefe  fuits  were 
commenced,  nor  did  he  know  that  faid  Marvin 
had  any  demands  on  him  or  Bingham,  for  bufi- 
nefs done  in  their  names,  till  a  fhort  time  be- 
fore the  prefent  action  was  inftituted  by  the 
plaintiffs  : — Bingham  having  the  fole  direction 
of  the  bufinefs  done  by  Marvin,,  and  he  alfo  re- 
ceived the  avails  thereof  to  his  own  ufe. 

Subsequent  to  thefe  tranfactions,  and  before 
the  commencement  of  the  prefent  fuit,  Bingham 
died,  a  bankrupt.  On 


COUNT?  OF  LITCHFIELD,  AUGUST  TERM.  79 

,   On  this  cafe  four  queftion  s  of  law  were  re- 
ferred to  the  court  of  common  pleas  : —  ===» 

1.  Whether  the  diffblution  of  the  partnerfhip     Bradley 
was  publifhed  in  ftich  manner  as  to  exonerate 

Camp  from  the  fubfequent  contracts  of  his  part- 
ner, on  the  company's  credit. 

2.  Whether  a  diffolution  of  the  partnerfhip, 
which   refpefted  only  the  future  purchafe  and 
fale  of  goods,  though  it  had  been  publifhed  with 
all  the  ufual  forms,  could  affecl  a  contract  like 
this,  which  arofe  out  of  it,  as  a  neceffary  con- 
fequence. 

3.  Whether,  if  two  0r-more  join  in  fuit,  it 
does  not  conftitute  fuch  a  partnerfhip,  or  con- 
neclion,  by  holding  out  a  joint  credit,  as  to  ren- 
der them  all  liable  for  the  expence  of  profecu- 
ting,  however  their  feveral  interefts  may  be  in 
the  event. 

.4.  Whether,  this  a£lion  being  brought  againft 
Camp  alone,  without  any  reference  to  Bingham, 
in  the  declaration,  under  all  the  circumftances, 
can  be  fupported  on  the  prefent  iffue. 

Thefe  were  the  only  points  made  in  the  caufe. 
Judgement  being  rendered  for  the  defendant, 
the  errors  afligned  were,  that  the  court  had  mif- 
taken  the  law  on  each  of  the  points  in  queftion. 

On  the  plea,  in  nullo  eft  erratum,  it  was  now 
argued  in  this  court. 

Mr.  Reeve  and  Mr.  Kirly>  for  the  plaintiffs  in 
error. 

It  is  an  eftablifhed  principle,  that  in  mercan- 
tile  companies,  the  contraQ  of  one  partner,  re- 
fpeQing  the  partnerfhip,  is  binding  on  the  whole,  292 
until  notice  of  a  diflblution  be  given.* — What  2  Black, 
is  proper  notice,  and  whether  it  has  been  given  tone's  Re 
in  this  cafe,  is  a  queftion — Tire  ordinary  way  F?rts>  993 

r  •        f     i  f  r*. .  .    '     .    '     vjrace 

ot  announcing  fuch  tranfactions  is  by  advertife-  ag*inji 
ment  in  a  public  gazette.  As  each  individual  Smith, 
of  the  company  acquire*  a  joint  credit  with  his 

copartners 


COUN'TY   OF   LlTCHFlELD,  AuGUST  TlRM* 

copartners  when  that  connexion  is  formed,  no- 
thing  can  be  more    reafonable,  than,  that  the 
Bracley  difTolution  of  that  connexion  mould  be  made 
again/I   known  wherever  the  company's  dealings  ex- 
ja^'  tend,   before  either  can   claim  an  exemption, 
from  the  contracts  of  the  other. — In  the  cafe 
of  Fox  againft  Hanbury%  Cowper>  449,  it  is  ad- 
judged by  the  court  of  King's  Bench,  that,  "  if 
"  partners  diffolve  their  partnerfhip,   they  who 
<f  deal  with  either,  -without  notice  of  fuch  dif- 
"  foliftion,  have  a  right  againft  both."     That  is 
applying  the  rule  more  ftri&ly  than  is  neceffary 
in  the  prefent  cafe ;  for  here  was  not  the  rea- 
ionable  and  ufual  means  of  knowledge  given. 

Judge  ELLSWORTH,  mentioned  the  cafe  of 
Imlay>  at  Hartford,  in  which  this  point  had  been 
adjudged.  """  The  cafe  was,  that  an  action  was 
"  brought  againft  William  Imlay  t  on  a  contract 
*  "  made  by  a  partner  of  a  company,  (to  which 
"  Imlay  had  belonged)  after  the  diifolution. — 
"  It  appeared  that  the  diffolution  had  not  been 
"  properly  publifhed,  and  Imlay  was  holden  to 
Cl  difcharge  the  debt." 

The  cafe  of  Bloxham  and  Fourdrinier  againft 
zBlack-1"  Pell  **d  Brooke,  before  Lord  Mansfield,  corn- 
tone's  Re-  pares  very  exa6tly  with  the  prefent  cafe.t— 
ports,  999.  "  There  was  a  partnership  for  feven  years  be- 
"  tween  Brooke  and  Pell;  but  at  the  end  of  one 
"  year  agreed  to  be  diffolved,  but  no  exprefs 
<(  diifolution  was  had.  The  agreement  recited, 
"  that  Brooke  being  delirous  to  have  the  profits 
"  of  the  trade  to  himfelf,  and  Pell  being  defi- 
<c  rous  to  rclinquifh  his  right  to  the  trade  and 
f<  profits,  it  was  agreed,  that  Brooke  mould  give 
"  Pell  a  bond  for  2485^  which  Pell  had  brought 
"  into  trade,  with  intereft  aitfveper  cent,  which 
"  was  accordingly  done.  And  it  was  farther 
"  agreed,  that  Brooke  fhould  pay  to  Pell  200.'. 
"**  tcr  annum,  for  fix  years,  if  Brooke  (o  long  li- 

"ved 


COUNTY  or  LITCHFIELD,  AUGUST  TERM*  81 

w  ved,  as  in  lieu  of  the  profits  of  the  trade;  and 

<(  Brooke  covenants,  that  Pell  mould  haVe  free 

c<  liberty  to  infpe£t  his  books. — Brooke  became     Bradley 

"  a  bankrupt  before  any  thing  was  paid  to  Pell.      ag<*!»Jf 

"  And  this  aftion  being  brought  for  a  debt  in-         mj 

<c  curred  by. Brooke,  in  the  courfeof  trade,  Lord 

<c  Mansfield  held  that  Pell  was  a  fecret  partner." 

In  the  cafe  now  under  confideration,  there 
was  not  a  more  exprefs  diflblution  of  the  part- 
nerlhip  than  in  the  one  lall  mentioned ;  for  here 
it  was  all  verbal ;  the  terms  being  agreed  upon, 
two  or  three  witnefles  only,  were  called  to  hear 
the  declaration  of  the  parties  concerned.  There 
it  was  committed  to  writing,  and  executed  on 
one  fide  and  on  the  other ;  and  though  not  pub- 
liihed,  it  was  as  effectual.  That  was  a  much 
harder  cafe  than  the  prefent ;  for  Pell  not  only 
loft  all  his  ftock  in  trade,  and  the  profits  cove- 
nanted to  be  paid  him  upon  the  diffolution,  but 
was  fubjecl  to  pay  the  fubfequent  debts  of  his 
partner.  In  the  prefent  cafe,  Camp  has  faved 
his  ftock  in  trade,  and  2OO/.  profit. 

As  to  the  fecond  point,— the  charges  in  this 
cafe  are  of  fuch  a  kind,  that  if  the  diffolution 
bad-been -publimed  with  the  tifual  formality,  it 
could  not  affect  the  prefent  demand:  For,  un- 
lefs  there  had  been  an  exprefs  ftipulation  that 
this  bufinefs  fhould  be  performed  upon  the  fole 
credit  of  Binghamt  or  Marvin  had  been  inform- 
ed of  the  terms  of  the  diffolution,  and  that  the 
company  dues  were  affigned  to  Bingham,  and 
had  become  his  fole  property,  it  muft  have  been 
prefumed  a  company  concern,  and  for  the  be- 
nefit of  all  the  partners,  notwithftanding  the  dif- 
folution. The  diflblution  of  a  partnerihip  puts 
an  end  to  any  future  acqueft  of  property  from, 
the  joint  occupancy  of  the  company's  funds, 
but  it  leaves  the  partners  the  fame  joint  intereft 
in.  whatever  they  may  have  on.  hand,-  whether 

L  it 


82  COUNTY  OF  LITCHFIELD,  AUGUST  TERM. 

it  be  in  (lock,  debts  due,  or  in  any  other  form : 
And  they  (till  continue  to  be  partners,  and  as 
Bradley  jointly  liable  as  before,  in  every  contract  necef- 
agatn/}  fary  to  ke  macje  for  tne  purpofe  of  afcertaining, 
collecting  and  dividing  their  property.  And 
whatever  compact  there  may  be  among  the  in- 
dividuals, to  controul  this  general  authority, 
which  each  one  ftill  retains  of  ufing  the  others 
credit  on  thofe  occafions;  ftill,  if  that  be  not 
publiflied,  as  \vell  as  the  diffolution,  it  can  avail 
nothing,  as  it  relates  to  ftrangers. 

The  contra6t  on  which  the  prefent  action  is 
founded,  is  clearly  of  this  kind ;  therefore,  the 
right  of  .recovery  is  not  affected  by  a  publication 
of  the  diffolution. 

As  to  the  third  point. The  demand  in  the 

prefent  cafe  originated  from  the  profecution  of 
fuits  at  law  in  the  name  of  Camp  and  Bingham,, 
for  the  recovery  of  debts  contracted  with  them. 
Here  was  a  joint  intereft  held  up  to  view;  and 
Campy  by  permitting  Bingham  thus  to  ufe  his 
name,  has  empowered  him  to  ufe  his  credit.  If 
Bingham  has  abufed  the  truft  repofed  in  him,  it 
is  much  more  reafonable  that  Camp  mould  fuf- 
t  i.  Sal-  tain  the  lofs,  than  a  ftranger.t  Agreeable  to 
keld,  289,  this  is  the  cafe  of  Carvick  againft  Vickery^  Doug* 

H*™       Rep.  append.  31. 

Nickels.  "  This  was  an  aftion  by  the  indorfee  of  a  bill 
Holt  462,  "  of  exchange,  which  was  in  the  following  form: 
s-  C.  "  Mr.  Abraham  Vickery, 

Durnf.  12.       «  jwo  months  after  date,  pleafe  to  pay  to  us 
Fitzhcr-  .         i      r  r,.    o 

bert          or  our  order,  the  ium  of,    &c. 

againjl  "  John  Mary  dwell, 

Mather.  «  John  Mary  dw  ell t  j.un. 

f<  It  was  endorfed  thus — John  Marydwcll,  jun. 
"  The  Marydwells  were  father  and  fon.     The 
"  endorfement  was  by  the  fon.     They  were  ad- 
"  mitted  not  to  be  partners.     The  bill  when 
"  due,  was  prefented  to  the  defendant,  and  ac- 

€<  cepted ; 


COUNTY  OF  LITCHFIELD,  AUGUST  TERM.  85 

*  cepted ;  and  at  the  fame  time  he  wrote  upon      ""17877 

"  it  a  direction  to  his  banker  to  pay  it.     The     ===== 

"  plaintiff  was  non-fuited,  becaufe  there  was  not     Bradley 

"  an  endorfement  by  both  the  parties  to  whofe      agamfl 

(<  order  the  bill  was  made  payable.     A  new  trial 

"  was  moved,  on  the  ground,  that  the  Marydwells 

"  by  joining  in  the  fame  bill,  and  holding  them- 

"  felves  out  to  the  world  as  partners,  mould 

*'  therefore,  for  that  purpofe,   be  treated  and 

"  dealt  with  as  fuch  ;  and  confequently  the  en- 

"  dorfement  of  one  was  binding  on  the  other. 

"  After  argument,  Lord  Mansfield  delivered 
«  the  unanimous  opinion  of  the  court,  that  the 
Cf  Marydwells,  by  making  the  bill  payable  "  to 
"  our  order"  had  made  themfclves  partners  as 
tc  to  this  tranfa&ion." 

In  the  prefent  cafe  there  was  as  much  ap- 
pearance of  a  joint  intereft,  as.  in  the  laft  men- 
tioned, and  more  injuftice  might  be  done  by  not 
treating  it  as  fuch« 

The  4th  point-*— whether,  under  the  general 
iflue,  the  defendant  may  take  exception,  that 
his  partner  is  not  defcribed  in  the  declaration 
as  having  jointly  contracted  the  debt  with  him. 
— This  point  is  fully  fettled  in  the  boo^s. 

Contracts  of  this  kind  have  ever  been  held  to 
be  joint  and  feveral : — Being  feveral,  either  of 
the  debtors  may  be  proceeded  againft  at  the  op- 
tion of  the  creditor.  And  it  cannot  be  cffential 
to  the  a&ion,  that  the  debt  be  defcribed  as  con- 
tracted in  company  with  another  perfon.  If  it 
be  neceffary  thus  to  declare,  it  is  merely  for  the 
advantage  of  the  defendant,  that  he  may  be  bet- 
ter notified  of  the  nature  of  the  demand;  there- 
fore, being  only  matter  of  form,  the  exception 
can  never  be  taken  but  in  abatement.  If  the 
defendant  negle&s  to  take  his  exception  at  the 
beginning  of  the  fuit,  he  is  fuppofed  to  have 
waved  it.  Thefe  principles  are  fully  eftablifh- 

Lz  ed. 


84  COUNTY  OF  LITCHFIELD,  AUGUST  TERM. 

ed,  in  the  cafe  of  Rice  vs.  Shute,  2  Blackftonc, 
697* — alfo,  Abotvs.  Smith,  ibidem  947 — Saycrvs. 
Bradley     Chaytor,  Lutwyckc  216 — and   Gilbert  vs.  Bath, 


- 
The  cafe  of  Whitcomb  vs.  Whiting,  Douglafs 

»5  Burrow,  529,  furnifhes  a  precedent  for  this  mode  of  de- 
"'  '  '  claring:  "The  declaration  was  in  common 
"  form,  on  a  promiffory  note  executed  by  the 
"  defendant.  The  general  iffue  was  pleaded ; 
"  and  alfo  non  ajfumpjit  infra  fex  annos ;  replica- 
"  tion,  ajfumpjit  infra  fex  annos.  On  trial,  the 
<f  plaintiff  produced  a  joint  and  feveral  note, 
"  executed  by  the  defendant  and  three  others." 
This  aftion  proceeded,  and  no  queftion  was 
made  as  to  the  propriety  of  the  procefs. 

Mr.  Canfidd  and  Mr.  Strong,  for  the  defend- 
ant.-^  In  this  cafe  there  appears  to  have  been 

a  copartnerfhip  between  the  defendant  and 
Bingham.  It,  however,  extended  only  to  a  fin- 
gle  (lore  of  goods,  and  the  authority  that  each 
had  to  contracl:  for  the  other,  was  reftrained  to 
a  fingle  perfon.  Under  fuch  circumftances,  no- 
thing more  was  neceffary  to  deftroy  that  autho- 
rity, than  to  make  the  diffolution  of  the  compa- 
ny as  extenfively  known,  as  the  exiftence  of  it. 
That  was  done  in  this  cafe:  It  does  not  appear 
that  the  partnerfhip  had  ever  been  heard  of  out 
of  the  town  of  Salifbury,  except  by  Mrs.  Wtbb9 
at  Wethersfield,  with  whom  they  traded ;  and  it 
is  clear,  that  the  creditor  in  this  cafe  had  no 
knowledge  of  it  till  the  time  of  the  contracl. 
Why,  then,  ought  he  to  complain  that  he  had 
not  notice  of  the  diffolution,  when  he  did  not 
know  of  the  company  ?  It  is  an  idea  not  found- 
ed in  reafon,  that  the  diffolution  of  every  com- 
pany of  merchants  mutt  be  made  known  beyond 
the  limits  of  their  ufual  dealing.  Notice  would 
never  be  neceflary,  but  upon  this  ground, — that 
the  company,  by  reputation,  having  gained  a  cre- 
dit, 


COUNTY  OF  LITCHFIELD,  AUGUST  TERM.  85 

dit,  fome  act  of  equal  notoriety,  muft  take  place     ~^T%T 
to  put  an  end  to  it.      If  this  line  be  once  pafT-     ===^ 
ed,  the  partners  can  never  be  fecure  againft  each     Bradley 
other ;  for  fome  one  may  always  go  where  the     againft 
company  hath  not  been  known,  and  contract  up-       ai 
on  the  credit  of  it. 

It  appears  in  this  cafe,  that  at  the  fame  time 
this  debt  was  contracted,  Marvin  was  tranfact- 
ing  the  fame  kind  of  bufinefs  for  Bingham,  on 
his  own  credit.  It  cannot  therefore  be  fuppo- 
fed,  that  the  credit  of  a  company  which  he  had 
never  before  heard  of,  was  the  inducement  to 
undertake  the  profecution  of  thofe  fuits.  This 
idea  is  corroborated  by  the  length  of  time 
•which  hath  elapfed  fince  the  debt  was  contra6ted. 
Had  Marvin  originally  confidered  Camp  to  be 
his  debtor,  he  would  undoubtedly  have  demand-  / 

ed  payment  long  before  this  time  :  And  had  the 
demand  been  within  the  life  of  B ing ham,  Camp 
might  have  indemnified  himfelf.  Campy  having 
no  knowledge  of  the  contract,  nor  any  notice  of 
the  debt,  it  is  upreafonable,  at  this  diflance  r£ 
time,  that  he  mould  be  holden. — The  action  of 
book  debt  is  founded  on  equitable  principles; 
and  al though  Jlrifti  juris,  there  might  be  a  right 
of  recovery;  yet  the  court  will  duly  weigh  every 
circumitance,  that  has  equitably  intervened  in 
favour  of  the  defendant. 

As  to  the  laft  queftion,  it  does  not  reft  limply 
on  tliis,  whether  there  be  a  defect  in  point  of 
form  ;  but  the  plaintiffs  have  declared,  as'upon  . 
a  contract  with  Camp  only  ;  the  ifTue  is,  that  the 
defendant  is  not  indebted  in  the  manner  and 
form  of  the  declaration. — The  evidence  exhi- 
bited on  the  trial  is  a  contract  with  Camp  and 
Bingham.  This  does  not  fupport  the  iffue.  It 
is  a  debt  of  a  different  defcription  ;  and  a  reco- 
very in  the  prefent  cafe  cannot  be  pleaded  in 
bar  of  another  action  upon  the  latter  contract ; 

for 


86  COUNTY  OF  LITCHFIELD,  AUGUST  TERM. 

^TgT1     for  the  record  will  not  (how  it  to  be  the  fame.— 
=====     The  cafe  of  Leglife  vs.  Champantc,  2.  Strange^ 

Bradley     820,  is  in  point. "  There  it  appeared  on 

againft  «  evidence,  that  the  plaintiff  had  a  partner,  who 
"  was  not  party  to  the  a6lion  :  And  the  Chief 
'  Juftice  (Lord  Raymond)  held,  that  if  it  was 
"  an  affumpjity  it  might  be  taken^  advantage  of  at 
K  the  trial,  for  it  would  not  be  the  fame  contra6t, 
"  but  it  ought  to  be  pleaded  in  abatement  in  the 
"  cafe  of  a  tort." 

The  Chief  Judge ,  mentioned  a  cafe  which  had 
been  determined  upon  the  authority  of  the  cafe 
now  read  from  Strange ;  but  faid  the  later  au- 
thorities were  the  other  way. 

Judgement  of  the  court  of  common  pleas 
reverfed. 

BY    THE   WHOLE  COURT. A  copartner* 

fliip  in  trade  being  formed,  the  partners  become 
liable  to  be  jointly  charged  for  all  fervices  done, 
or  credits  given  at  the  requeft  of  either  of  them, 
relating  to  the  bufmefs  of  the  copartnerfhip  ; 
and  fo  continue  liable  till  public  notice  is  given 
of  the  copartnerfhip's  being  diffolved.  This  is 
neceflary  for  the  benefit  of  trade,  and  to  prevent 
impofition;  and  fo  far  as  the  right  each  partner 
derives  from  the  formation  of  the  partnerfhip, 
to  contract  for  the  company,  relates  to  credi- 
tors, that  right  is  not  vacated,  until  public  notice 
of  a  diffolution  is  given. — Cowptry  449,  Fox  vs. 

Hanbury. In  the  prefent  cafe,  this  notice  was 

not  given,  nor  had  the  creditor  any  knowledge 
of  the  fa6t.  He  might  well,  therefore,  charge 
the  partners  in  company  ;  more  efpecially,  as 
the  fervices  he  rendered  were  prima  facie  for 
their  joint  benefit,  being  the  profecution  of  fuits 
in  their  joint  names,  and  which  arofe  out  of  the 
company  tranfatlions. 

There  can  be  no  doubt  but  a  right  of  a£tion 
furvived againft  the  furviving  partner;  efpecial- 


COUNTY  OF  LITCHTIELD,  AUGUST  TERM.  87 

ly  if  it  be  confidered,that  all  company  cont rafts  ~^%T 
are  in  their  nature  joint  and  feveral :  And  as  to  =^==s 
the  manner  of  bringing  this  fuit,  it  might  have  Bradley 
been  well  for  the  purpofes  of  certainty,  and  be-  *g**»ft 
nefit  of  the  defendant,  in  preparing  his  defence,  am^' 
to  have  declared,  that  the  debt  was  contracted 
by  the  defendant  in   company  with  Bingham: 
But  a  failure  thus  to  declare,  was  only  pleada- 
ble  in  abatement,  and  could  be  of  no  avail  un- 
der the  general  ifliie,  on  which  the  caufe  was  .     ...    , 
tried.*     For  it  doth  not  faliify  a  charge  of  debt  ftone>s  Re~- 
againft  one,  to  (how  that  another  is  alfo  indebu  ports  697, 
ed,  and  might  have  been  joined  in  the  fuit :  Nor  Rlcc 
doth  the  law  require  the  fame  circumftantiality  c,v 

,  -r         •       j      i      •  r        •    v  •  Shute. 

and  preciiion  in  declaring  upon  ipecialities,  or  5  Burrow, 

other  writings  of  which  there  is  a  profit,  as  on  2611.  S.C.  • 

a  fpecial  afTumpfit,  where  the  defendant  has  no  2  Black- 

means  of  identifying  the  contract  but  from  the  ^^j.*7* 

declaration ;  and  a  fmall  variation  between  the  vs 

allegations  and  the  proofs  may  be  fatal.  Smith. 
Therefore,  the  judgement  of  the  court  of  com- 
mon pleas  was  reverfed. 


The  STATE  again/I  WILLIAM  GREEN. 

The  jury  art 


THIS  was  an  indidment  for  adultery. 
A  r  T/->  '  ~- 

After  verditt,  Mr.  Reeve  and  Mr.  Tracy,  evidence, 

counfel  for  the  prifoner,  moved  in  arreft.    They  ^cSri1-0 
mowed  for  caufe,  —  That  the  teftimony  produ-  ti<  »,  every 
ced  againft  the  prifoner,  on  trial,  was,  that  fome  a^cT^f  .he 
perfons  fufpecling  faid  Green  to  be  with  Tryphc-  cafei  theic- 
nat  wife  of  Saviutl  Rojfetar,  at  9  o'clock  in  the  SonV^fcb 
evening  of  the  loth  day  of  May  1786  ;  and  that  is  thought 
they  fet  out  to  go  to  the  houfe  of  Ro/etar,  and  <S» 
were  told  that  faid  Tryphena  had  faid  fhe  fliould  «onyia  on 

an  ind  a- 
mcnc  for 
»dul:cry,  i»con;lufiTe  af;«  yerdiaj  even  if  tbe  court  shculd  be  of  a  diffeicnc  opinion 


$8  COUNTY  OF  LITCHFIELU,  AUGUST  TERM. 

. 

"17867     l°dge  at  a  neighbour's  houfe  tliat  nigjit :  They, 
*==     however,  went  to  the  houfe,  and  found  the  doors 
The  State  fattened.     They  then  went  to  the  neighbour's 
«g«'nj       houfe  mentioned,  and  found  fhe  was  riot  there. 
en>  — -They  returned  again  to  Rojfetar's  houfe,  and 
having  heard  fome  perfon  nailing  a  window, 
they  looked  in  and  found  Green  in  bed  with  faid 
Trypkend,  a  little  after  10  o'clock  in  the  even- 
ing; and  fhe  was  feen  to  turn  from  Green  while 
in  bed  undreflcd :    Which  f  d  was  not  conteft- 
cd  by  the  counfel  afligned  f      the  prifoner ;  but 
the  whole  matter  in  difpute  vvas,  whether  that 
iatl  was  fufficient  to  convi6l  upon  the  ftatute 
againil   adultery: — And  that  the  verdict   was 
found  againft  law. 

For  the  prifoner  they  urged,  that  this  was  not 
proof  of  the  crime  of  adultery ;  though  it  was 
undoubted  proof  of  a  different  crime  of  a  lower  - 
nature,  for  which  the  legiflature  have  exprefsly 
provided  a  punimment,  by  ftatute ;  which  is — 
"  That  if  any  man  be  found  in  bed  with  another 
"  man's  wife,  the  man  and  woman  fo  offending, 
"  being  thereof  convi&ed,  mall  be  feverely 
<c  whipt,  not  exceeding  thirty  ftripes." — This 
ftatute  was  exprefsly  provided  for  cafes  like  the 
prefent,  where  clear  proof  cannot  be  had  of  the 
a6t  of  adultery  ;  for  the  law  will  not  punifh  men 
with  the  feverity  affixed  to  the  crime  of  adulte- 
ry, upon  mere  prefumption. 
The  motion  over  ruled. 

BY  THE  WHOLE  COURT. The  jury  arc 

by  law  the  proper  judges  of  the  weight  of  evi- 
dence, on  the  whole  circumftances  of  the  cafe : 
And  although  the  prifoner,  by  the  fame  tefti- 
mony,  might  have  been  proceeded  againft  and 
convifted  on  another  ftatute,  for  a  lower  of- 
fence ;  yet  it  cannot  from  thence  be  inferred, 
that  the  evidence  was  not  fufficient  to  convitt 
him  of  adultery. 

A' 


COUNTY  OF  LITCHFIKLB,  AUGUST  TERM.  89 

Note. — In  this  cafe  motion  was  made  for  the     ^Tggf 
admifilon  of  a  witnefs,  to  prove  that  the  prifon- 
er,  at  a  time  previous  to  the  crime  alledged,  hi-  The  State 
red  this  witnefs  to  go  to  the  houfe,  and  fee  whe-     «g«»\ 
ther  the  woman's  hufband  was  at  home. 

Objefted  by  the  prifoner's  counfel,  becaufe 
it  was  no  part  of  the  fafts  alledged  in  the  indict- 
ment. 

The  witnefs  was  admitted :  For, 

BY  THE  WHOLE  COURT. Though  it  is  no 

part  of  the  direft  charge  in  the  indictment,  it  is 
a  circumftance  which  leads  to  the  crime. 


ANONIMOUS. 


THE  Court  faid  it  was  an  efiabliflied  rule,  when 
judgement  is  arrejled  after  verdifffor  the  injuffi.ci- 
ency  of  the  declaration,  not  to  tax  cojl  on  cither  fide. 


MILLS  againft  BISHOP. 
HIS   cafe   was   determined   on   pleas    in  Jfi^iiJte- 


abatement  the  laft  term,  and  the  plain- 
tifF  allowed  to  amend  on  paying    coft  :    Final  The  plaintiff 
judgement  being  now  rendered  for  the  plain-  shajl  r«°ver 

•  <r      u  rr          i     i   •  11  i  i        '  °  c°">  an- 

titt,   he  ottered  his  whole  colt  to   be  taxed  ;  rece<'e'tro 
but  it  was  ruled  by  the  whole  court,    that  the  lm' 
plaintiff  fliould  recover  no  coft  antecedent  to 
the  abatement,  excepting  writ,  duty,  and  offi- 
cers  fees.  fees. 


The  derend- 
an:  c.  nnoc 
WOOSTER  agamfl  SiMONS.  d.mnrto 

the  dcchra- 

'HIS  cafe  was  tried  at  the  court  of  common  jj^jf et 
pleas,  on  the  general  HFue,  and  a  verdict  r leaded  to 

>r  the  plaintiff. The  defendant  moved  in  *flue' 

M 


__i7_86. 

Woofler 
againft 
Simons. 


COUNTY  OP  LITCMPIKID,  AUGUST  TERM. 

arreft,  becaufe  of  the  infufficiency  of  the  decla- 
ration; which  was  over  ruled. — The  defendant 
then  appealed ;  and  before  this  court,  moved 
for  leave  to  demur  to  the  declaration;  which 
was  denied  by  the.  court :  Becaufe,  by  ftatute,  the 
defendant  having  pleaded  to  ifTue,  and  judge- 
ment thereon  been  rendered,  mall  not  demur. 


GRANT  againjl  JACKSON. 


DccUration, 
'*'  that  the 
defendant 
received  of 
the  pldintiff 
a?l.  6s.  Sd. 
in  o:d  rs  on 
the  one 
shilling 
(tax,  which 
he  promifed 
to  return  or 
account 
for  i*"  ad- 
jiidg^d  in- 
fufticient  for 
uncertainty. 


A   SSUMPSIT.- 


-The  declaration  is, — 


JL\  "  That  on  the  23d  day  of  Sept.  1784,  the 
"  defendant  received  of  the  plaintiff  29?.  65.  Sd. 
"  in  orders  on  the  one  milling  tax ;  which  orders 
"  the  defendant  then  and  there  promifed  to  re- 
rt  turn  to  the  plaintiff  by  the  firft  day  of  July 
"  then  next,  or  to  account  with  the  plaintiff  for 
"  faid  orders  in  fome  other  way,  by  faid  time; 
"  as  appears  by  a  writing  under  the  defendant's 
"  hand,  of  the  date  above,  ready  in  court  to  be 
"produced." 

To  this  declaration  the  defendant  demurred 
generally. 

Mr.  Strong,  for  the  defendant,  took  two  ex- 
ceptions:— 

1.  The  declaration  is  fo  vague  and  uncertain, 
that  no  legal  judgement  can  be  founded  there- 
on.    It  does  not  point  out  the  kind  of  orders 
.with  that  certainly  that  the  value  can  be  afcer- 
tained. 

2.  The  action   is  mifconceived,  for  by  the 
plaintiff's  own  mewing  the  defendant  was  to  ac- 
count ;  the  aftion  therefore  ought  to  have  been 
account  and  not  ajffumpjit. 

Mr.  Tracy  for  the  plaintiff. The  declara- 
tion counts  truly  on  the  writing,  and  ftates  the 

whole 


COUNTY  or  LITCHFIELD,  AUGUST  TERM.  91 

whole  of  it ;    it  could  not   with  propriety  go     ==^Q=f 
any  further. — The  defendant   fuffers  no  difad-     - —     -^ 
vantage ;  for  he  is  fufficiently  notified  of  the      Grant 
nature  and  kind  of  the  demand. — If  there  be     again  ff 
any  uncertainty  refpe6ling  the  damage  to  be    Ja< 
affeffed,  it  may  be  aided  by  evidence. 

As  to  the  fecond  exception,  afTumpfit  will  lie 
in  all  .cafes  where  there  is  an  exprefs  under- 
taking to  account. — i.  Salkeld,  9.  Wilkin  vs. 
Wilkin. — i.  Bacon's  Abr.  tit.  ajjumpfit.  (A.) 

BY  THE  WHOLE  COURT. The  declara- 
tion is  inefficient  •  it  gives  no  rule  of  damages; 
The  orders  which  the  defendant  is  challenged 
to  account  for  being  no  otherwife  dcfcribed 
than  as  drawn  on  the  one  (hilling  tax  ;  and  as 
it  doth  not  appear  by  whom  or  by  what  autho- 
rity they  were  drawn,  or  on  which  of  the  one 
{hilling  taxes,  as  divers  have  been  granted  and 
were  of  different  values,  there  is  no  rule  given 
to  the  court  by  which  to  afcertain  their  value, 
or  affefs  damages  for  not  re-delivering  or  other- 
wife  accounting  for  <  them. 


The  Ecclefiaflical  Society  of  South-Farms,  in 
Litchfield,  againft   GEORGE  BKCKWITK. 

ACTION  for    breach   of  covenant. — The 
declaration  was,  that  the  plaintiffs  having 
called  the  defendant,    in  the  cuftomary  way  of 
calling  candidates  for  the  miniftry,  to  fettle  with 
them  as  a  gofpel  minilter;  and  he  having  cove- 
nanted and  agreed  to  the  fame  ;   for  the  better 
underftanding    and   mutual    advantage    of  the 
parties,  at  Litchfield,  on  the  2zd  day  of  Oftobqr 
1772,  the  plaintiffs  and  defendant  covenanted 
M  2  and 


COUNTY-OF  LiTcirrizLD,  AUGUST  TERM. 
and  agreed,  among  other   things,    as  follows 


South- 

I'arms 

agaiajt 

Beck  with, 


viz. 


The  church  vx&focicty  (meaning  the  church 
"firmed  in  faid  fociety,  and  the   inhabitants   of 
"faid  fociely)    engage  to  fupport  Mr.  Beck. 
"  during  his  natural  life,  and  to  give  him  135^ 
"  on  the  day  of  his  inftallation  ;  and  if  not  paid 
"  at  that  time,  to  pay  him  the   intereft  thereof 
"  till  paid.     Alfo  to  pay  him   6$l.  more,  with. 
"  in  two  years  from  faid  time,    and  if  not  then 
"  paid,    to  pay  him   the    intereft    thereof  till 
"  paid.     All  this,  the  faid  church,  and    focietp 
"  agree   to  pay   Mr.  Bcckwith  as  a  fettlement. 
"  And  the  faid  Mr.  Beckwithy  on  his  part  doth 
"  hereby  agree  to  accept  the  above  offer,  and  en- 
"  gage  to  become  the  minifter  and  paftor  of  faid 
"  church  upon  their  prefent  eftablilhment  ;    and 
*'  to  ferve  faid  church  and  fociety  in  the  gofpel 
"  miniftry,  as  God  fhall  give  him  ability,  during 
cr  his  natural  life  ;    and  not  to  vary    or  go  oif 
f(  from  faid  eftablifhment,    without   a   majority 
Cf  of  faid  church  and  fociety  colleftively,   except 
*'  he  forfeit  (if  it  be  immediately)  his  whole  fet- 
cttlement;  if  after  but  one  year  from  the  time 
"  of  his  fettlement,  then  190!.  thereof;  if  after 
"  two  years,  then  i8ol.  —  and  fo  on  in  the  fame 
'*  proportion,  according  to  the  number  of  years 
c*  he  continues  to   be   their  paftor,   till  twenty 
"  years  are  expired,  if  God  pleafe  to  fpare  his 
"  life,  and  continue  faid  near  relation  till  after 
"  that  time,   when  after  that  there   mail  be  no 
"  forfeiture  of  fettlement."     Which  covenant 
was  w.ell  executed  under  the  hands  and  feals  of 
a  committee  lawfully  authorifed  by  faid  church 
and  fociety,  and  by  the  defendant,  dated  ihe  22d 
day  ofOftober  1772  ;    as  appears  by  faid  cove- 
nant ready  in  court  to  be  mown. 

And  the  plaintiffs  fay,  the  eftablithment 
•which  the  defendant  in  faid  covenant  agrees  and 
promifes  not  to  vary  or  go  off  from,  without  the 

majority 


93 


South- 
Farms 
againft 


COUNTY  OF  LITCHFIELD,  AUGUST  TERM. 

majority  of  faid  church  smdfociety,  under  the  pe- 
nalty of  forfeiting,  as  ismentioned  in  faid  cove- 
nant, was  underflood  and  meant  by  the  parties 
at  faid  time,  to  be  the  eftablifhment  or  mode 
of  church  difcipline,  then  practifed  by  faid  Beckwhh. 
church  and  fociety  ;  which  was,  as  the  defendant 
very  well  knew,  the  fame  eftablifhment  adopted 
in  general  by  prefbyterians,  and  congregational 
churches  in  the  ftate  of  Connecticut,  commonly 
called  Say  brook- Platform  cftabliftiment,  or  form 
of  church  difcipline.  And  that  faid  135!.  and 
faid  65!.  promifed  to  the  defendant  in  faid  cove- 
nant, was  meant  lawful  money,  and  in  lawful 
money  was  actually  paid  to  the  defendant  by  the 
plaintiffs,  agreeably  to  the  covenant  aforefaid. 
Yet,  the  defendant,  not  ignorant  of  the  premif- 
es,  and  difregarding  his  covenant  and  agree- 
ment, on  the  5th  day  of  January  1773,  know- 
ing he  was  liable  to  cenfure  for  fome  of  his  con- 
duct, and  being  called  upon  by  the  affociation 
for  Litchfield  county,  to  anfwer  for  his  faid 
conduct.  To  obey  which  requeft  of  the  affoci- 
ation, the  defendant  was  obliged  by  the  known 
conftitution,  and  eftablifhment  of  faid  church, 
and  all  the  churches  adopting  Saybrook- Plat- 
form, for  a  mode  of  difcipline,  And  for  the 
purpofe  of  avoiding  afcrutiny  of  his  conduct,  by 
faid  affociation,  privately  convened  the  mem- 
bers of  faid  church,  and  without  the  knowledge, 
or  confent  of  the  inhabitants  of  faidyoa^jy,  the 
defendant  and  majority  of  faid  church,  paffed  a 
number  of  votes,  or  proportions,  reflecting  the 
mode  of  church  difcipline,  for  their  future  prac- 
tice ;  which  they  attempted  to  fupport  and  coun- 
tenance by  many  fcripture  proofs,  totally  fub- 
verfive,  and  directly  contrary  to  the  plan  of 
church  difcipline,  formerly  adopted  by  faid 
church  ;  and  direclly  contrary  to  the  plan  or 
mode  of  church-government,  which  was  meant 

and 


94  COUNTY  or  LITCHFIELD,  AUGUST  TERM. 

and  intended  by  the  parties  in  faid  covenant, 
not  to  be  varied  or  altered  by  the  defendant, 
South-  without  his  incurring  the  forfeitures  mentioned 
Farms  in  fad  covenant.  Particularly,  the  plaintiffs 

Beckwith.  ^*  '^  major^y  °f  feid  church,  under  the  in- 
fluence and  inftigation  of  the  defendant,  and  to 
avoid  a  fcrutiny  of  his  conduct  as  aforefaid — 
voted  in,  agreed  to,  and  have  ever  fince  acted 
upon,  until  the  defendants  difmiffion  from  laid 
fodety>  among  many  proportions,  the  following, 
viz. 

"  That  all  powers,  authorities,  capacities,  and 
"  privileges,  which  in  the  holy  fcriptures  are 
"  faid  to  belong,  or  appertain  to  the  church  of 
"  Chrift,  do  belong  to  every  particular  church  ; 
"  and  that  every  fuch  particular  church  is  ref- 
"  ponfible  to  Jefus  Chrift  for  the  exercife  of 
"  fuch  powers,  abilities  and  privileges,  to  them 
*'  by  him  annexed;  "and  consequently  by  divine 
"  conftitution  are  inherent  and  eflential,  and  fo 
"  can  never  be  transfered  or  affigned  over  to 
"  Others.  And  therefore  it  is  the  intereft  and 
ft  effential  right  of  every  particular  church,  to 
"  choofe  its  own  paftor,  and  all  means  requi- 
"  fite  and  neceffary  to  render  fuch  a  choice  ef- 
"  feftual.  Alfo  to  exercife  difcipline  over  its 
"  own  members,  according  to  the  will  of  Chrift ; 
"  and  that  no  other  church,  consociation  of  church- 
ft  cs,  or  ecclejiaftical  council  whatever,  has,  or  can 
"  have,  any  right  authoritatively  to  intermeddle 
"  with  matters  of  this  kind.  And  that  therefore, 
"  the  claims  made  by  the  affbciation  of  Litchfield 
"  county\  to  examine  all  licenfed  candidates  for 
"  the  miniftry  before  they  may  give  an  anfwer 
"  to  an  invitation,  or  accept  an  invitation  to  the 
"  paftoral  office  in  faid  county  ;  alfo  the  late 
"  claim  of  the  confociation  of  laid  county,  to 
"  exercife  an  exclufive  right  of  ordaining  to  the 
"  paftoral  office  j  and  authoritatively  and  deci- 

«  lively 


COUNTY   OF   LlTCHFlBLD,  AUGUST  TERM.  95 

"  fively  determine  matters  eccleiiaftical  within     ~T^867 
<c  faid  county,  is,  in  the  opinion  of  this  church,     — = 
<c  an  infringement  upon   chriftian  liberty,   and      South- 
«  inconfiftent  with   the  fimplicity   of  the  gof- 
cf  pel,   and   the   rights   of  churches  ;    and  that 
"  by   the  laws  of   Jefus  Chrift,   this  church  is 
"  indifpenfibly    obliged   not  to   fubmit  to    a- 
"  ny   authority,    claimed   as    aforefaid.      And 
"  that   it   is  the  opinion  of  the   church)  upon 
"  mature    deliberation,    that    the    articles    of 
«c  agreement,  (as  they  arc  called)  confidered  as  a 
«'  fyftem,  faid  to  be  entered  into  by  the  church- 
"  es  in  Litchfield  county,  ought  never  to  be,  or 
"  to  have  been  confidered  as  a  rule  to  be  obferv- 
"  ed  by  this  church.1"     As  by  faid  vote  or  pro- 
pofition  ready  in  court  to  be  produced,  may  ap- 
pear; dated  January  the  5th  day,  A.  D.  1773. 

Which  conducl  of  the  defendant,  in  varying, 
going  off  from,  and  entirely  altering  the  eftab- 
lifhmentoffaid  churcht  as  to  difcipline,  and  with- 
out the  knowledge  or  confent  of  faidfocicty,  was 
a  direft  violation  of  his  covenant  with  the  plain- 
tiffs, as  mentioned  above.  And  by  which  con- 
duel,  the  plaintiffs  fay,  he  has  forfeited  his  fet- 
tlement,  according  to  the  tenor  of  faid  cove- 
nant ;  and  by  which  means  they  are  entitled  by 
law  to  recover  of  the  defendant,  as  they  fay, 
500!.  lawful  money. 

To  this  declaration,  Mr.  Adams  and  Mr. 
Canjield,  for  the  defendant,  demurred  general- 
ly ;  under  which  they  took  the  following  excep- 
tions : 

1.  The  declaration  does  not  fet  forth   with 
fufficient  certainty,  what  the  conftitution  of  the 
church  was,  fo  as  to  admit  of  proof  or  difproof; 
it  is  only  ftated  by  way  of  innuendo. 

2.  That  the  whole  matter  is  merely  fpiritual. 
It  is  only  whether  the  defendant  has  taught  the 
beft  fcripture  doftrine  ;  which  is   a  matter  the 
court  can  never  take  cognizance  of. 

3.  The 


South- 
Farms 
againjt 
Lcckwith. 


COUNTY  OF  LITCHFIELD,  AUGUST  TERM, 

3.  The  defendant  only  afted  as  moderator  of 
the  church  meeting ;  and  the  votes  alledged  as  a 
breach  of  his  covenant,  were  the  aclof  the  church, 
and  not  his  a&,  or  imputable  to  him  as  a  fole 
tranfaclion  ;  which  only  could  be  a  breach  on 
his  part ;  for  no  act  of  the  church  can  be  im- 
puted to  the  defendant,  either  as  a  breach,    or 
fulfilment  of  the  covenant. 

4.  There  is  nothing  Rated  in  the  declaration, 
which  can  operate  as  a  rule  of  certainty,  where- 
by damages  may  be  given  ;    for   it  is  no  where 
averred  at  what  time  the  defendant  was  ordain- 
ed or  inftallcd,  or  how  long  he  continued  in  the 
performance  of  his  covenants. 

Mr.  Reeve  and  Mr.  Tracy>  for  the  plaintiffs. 

In  anfwer  to  the  firft  exception,  the  declara- 
tion exprefsly  avers,  that  the  conilitution  of 
church-difcipline,  meant  and  underftood  by  the 
contra&ing  parties,  and  which  the  defendant  co- 
venanted not  to  deviate  from,  was  the  Saybrook- 
Platform.  That  is  a  fyflem  of  church-govern- 
ment, which  has  become  a  part  of  the  laws  of 
the  land,  and  therefore  can  need  no  further  de- 
finition. 

2.  This  cannot  be  considered  as  an  ecclcfiaf- 
tical  matter ;  the  contract  and  covenant  is  whol- 
ly civil,  and  it  is  as  eafy  to  determine,  whether 
the  defendant  has  acted  in  conformity  to  the 
principles  of  the  church-conftitution,  as  to  de- 
termine any  other  fact. 

-  3.  The  votes  ftated  by  the  plaintiffs,  amount 
to  a  dire£l  declaration  of  independance.  It  is 
averred  that  the  defendant  procured  the  church  t 
to  pafs  thofe  votes  which  contain  a  fyftem  total- 
ly repugnant  to  the  Saybrook-Platform.  The 
activity  of  the  defendant  to  procure  thofe  votes, 
is  a  fingle  a£t  alledged  againft  him  capable  of 
being  traverfed.  And  it  is  further  averred  that 
he  immediately  went  on,  and  has  ever  fmce 
praBifed  on  thofe  principles. 

4.  The 


COUNTY  OF  LITCHFIELD,  AUGUST  TERM.  97 

4.  The  breach  of  the  covenant  muft  have  re- 
ference to   the   making  of  it.     The  iriftant  the     = 
covenant  was  compleatcd,  they  became  bound      South- 
to  pay  him  fo  much  money,  he  became  their  mi- 
nifter,  and  was  obliged  to  praclice  by  the  rules 
and  principles  pointed  out  by  the   contra&ing 
parties.     Any  deviation  from  thofe  rules,  after 
that,  was  a  breach  of  the  covenant. 

BY  THE  WHOLE  COURT — The  declaration  is 
infufficient. — -Becaufe,  ift,  The  rule  of  dama- 
ges is  uncertain. — The  claim  is,  that  the  defend- 
ant mould  repay,  as  a  forfeiture,  a  part  of  his 
fettlement,  proportioned  to  the  time  from  his 
inftallation,  to  a  certain  fubfequent  period,  when 
he  is  fuppofed  to  have  broken  his  covenant ; 
but  when  his  inftallation  took  place,  doth  not 
appear  from  the  declaration. 

2.  It  doth  not  appear  that  the  covenant  hath 
been  broken. — The  covenant  was,  on  the  part 
of  the  defendant,  that  he  mould  be  the  minifter 
of  faid  church,  as  then  eftablifhed,  (which  is  faid 
to  have  been  upon  the  Saybrook-Platform)  and 
"  not  vary  or  go  off  from  laid  eftablifhment, 
without  a  major  part  of  the  church  and  fociety." 
They  might,  if  they  faw  fit,  releafe  him  or  al- 
ter their  eftablifhment ;  but  otherwife  he  was 
bound  by  this  covenant  to  continue  their  minit- 
ter,  and  to  conform  to  the  rules  and  difcipline  of 
faid  church,  as  then  practiced  and  eftablifhed, 
under  certain  penalties.  This  was  the  extent 
'of  his  covenant ;  and  of  this,  it  doth  not  appear 
that  he  has,  in  any  point  failed.  It  was  no 
breach,  on  his  part,  that  the  church,  for  whofe 
conduct  he  had  not  ftipulated,  and  whofe  pro- 
ceedings he  had  not  power  to  direft  or  ne- 
gate, pafled  certain  votes,  and  declared  certain 
claims  of  the  confodated  churches  in  Litchfield 
:ounly,  unfcriptural.  How  far  thofe  claims  were 
.rranted  by  the  Saybrock-Platform,  or  how 
N  far 


South- 
Farms 

againjl 

Beckwuh. 


COUNTY  OF  LITCHFJELD,  AUGITST  TERM*. 

far  the  ckurch>  by  declaring  againft  them,  has 
affected  its  conftitution,  is  not  material ;  fmce 
it  doth  not  appear  that  the  defendant  has  ever 
refufed  to  fubmit  to,  or  adminifter  difcipline  in 
faid  churchy  or  to  perform  the  other  duties 
of  a  paftor  thereof,  according  to  the  rules  e- 
ftablithed  and  practiced  therein,  at  the  time  of 
his  fettlement.  The  averment,  that  ever  (ince 
the  aforefaid  declaration,  he  has  practiced  a- 
vTeeably  thereto,  is  too  general.  It  is  not  tra- 
verfable.  Nor  can  it  appear  to  the  covirt,  un- 
lefs  the  facts,  or  fome  of  them,  are  fpecially  fet 
forth,  that  the  conduct  of  the  defendant,  has  a~ 
mounted  to  a  breach  of  his  covenant. 


Working 
unff -led 
Ic  '  h  r  inco 
fadclles  and 
liarncf.,  is 
h  Id,  bv 
three  judges 
agamlt    ~ro, 
m>   to  he 
•vi:hin  the 
ft.i  ii'C,  rc- 
gulaiing 
tanners- 


CHURCH  againjl  THOMSON. 

INFORMATION   qui  tarn,   on  the   ftatutc 
for  working  unfealed   leather. By  the 

ftatute,  it  is  enacted,  "  That  no  perfon  or  pcr- 
"  fons  whatfoever  fhall  caufe  or  fufFer  any  lea- 
"  ther  by  him  or  them  tanned,  to  be  wrought 
"  up  by  any  fhoemaker,  employed  either  by 
"  himfelf,  or  by  any  other  perfon  or  perform 
(t  for  him  ;  nor  fliall  he  work  up  the  fame  him- 
"  felf,  before  fuch  leather  be  viewed  and  fealed, 
(t  as  aforefaid,  on  penalty  of  forfeiting  the  fum 
"  of  Jive  pounds  for  every  hide  or  {kin  fo  as 
"  aforefaid  by  him  or  them  wrought,  caufed 
"  or  fuffered  to  be  wrought  up,  before  fealing 
"  as  aforefaid." 

The  defendant  was  a  tanner,  and  had  worked 
unfealed  leather  into  faddles  and  harnefs  :  It 
was  not  clearly  proved  that  he  had  worked  any 
into  fhoes,  though  the  circumftances  rendered 
it  very  probable. 

The 


COUNTY  OF  LITCHFIELD,  AUGUST  TERM. 

The  jury  found  a  verdict  for  the  plaintiff, 
on  which  the  Court  delivered  the  following 
opinions : — 

LAW,  Chief  Jujlicey  SHERMAN  and  ELLS- 
WORTH,— Suppofed  that  claufe  of  the  ftatute 
to  have  reference  to  fhoes  and  boots  only  ; 
and  that  it  could  not  be  extended  beyond  the 
letter,  fo  as  to  include  faddles  and  harnefs  j 
it  being  a  penal  ftatute,  ought  to  be  conltrued 
ftri&ly,  otherwife  it  might  operate  as  a  thare 
to  mankind. 

DYER  arid  PITKIN, — faid  they  confidered 
the  law  to  be  every  where  pointedly  againft  ma- 
nufacluring  or  vending  bad  leather :  That  the 
great  objecl  of  the  ftatute  is  to  prevent  that 
public  injury.  The  working  of  bad  leather 
into  faddles  and  other  wares,  is  as  expreisly 
within  the  mifchief  the  law  intended  to  pre- 
vent, as  the  working  of  it  into  fhoes  ;  therefore 
within  the  fpirit  and  meaning  Nam  aid  Jurrti 
in  literay  haret  in  cortic-c. 


99 


Church 

againft 

Thomfon. 


N2 


CLAP 


1OO 


COUNTY  OF  FAIRFIELD,  AUGUST  TERM. 


_i_786,. 

When  num- 
beri  arc 
irined  in  a 
Wit ;  depo- 
'.  can- 
Jiot  be  im- 
proved a- 
^nintt  fuch 
of  them  as 
a  e not  no- 
tified of  the 
taking  ;  but 
each  pe'fon 
snuft  have 
no:ice  ;  if 
•within  :hc 
diftance, 
theft  mre 
prcfcribes. 


CLAP  again/I  LOCKWOOD  and  Others. 

THIS  was  an  aclion  of  trover  againft  feve- 
ral  defendants. — Mr.  Davenport,  for  the 
plaintiff,  offered  to  read  a  depofition  taken  out 
of  court ;  but  it  appeared  that  one  of  the  de- 
fendants was  neither  notified  or  prefent  at  the 
taking  thereof,  although  he  lived  within  four 
miles  of  the  place  of  caption.  And, 

BY  THE  COURT, — It  was  rejected,  as  it  re+ 
fpecled  the  defendant  not  .  notified  ;  becaufe 
the  defendants  have  a  right  to  plead  feverally, 
and  they  may  have  different  defences;  and  the 
queftions  put  by  thofe  who  were  prefent  may- 
be inapplicable  to  the  defence  of  the  one  not 
prcfent,  and  he  might  thereby  be  defeated,  of 
the  benefit  of  crofs-examination. 


A  Judge  of 
Probate 
ought  not  to 
icjeft  an  in- 
vcn.ory, 
thatcontains 
P'opc'.rj; 
ihe  title  to 
vriiich  vdif- 
pi.ted  :  for 
n.sdecifion 
c  <nnot  aff  ft 
the   ighi.  of 
trying  the  ci- 
tlecop  oper- 
tjr,  at  com- 
mon lav. 


STEPHEN  GOLD. — Appeal  from  Prolate. 

MR.  Bcneditt  and  Mr.  Whittltfey,  for  the 
appellant,  affigned  the  following  reafons 
for  their  appeal : — That  the  appellant  is  one  of 
the  heirs  of  Hezekiah  Burr,  deceafed  ;  and  that 
faid  Burr,  in  his  life-time,  was  well  feized  and 
poffeffed,  in  his  own  right  in  fee  fimple,  of  a 
certain  traft  of  land,  lying  in  Reading,  in  the 
county  of  Fairfield,  containing  about  one  hun- 
dred and  fixty  acres,  bounded,  &c.  and  con- 
tinued thereof  fo  feized  until  his  death,  which 
happened,  &c.  Upon  the  deceafe  of  faid  Burrt 
the  faid  eftate  defcended  to  the  appellant, 
Sarah  Jackfon  and  others,  heirs  of  the  faid  de- 
ceafed, and  they  became  thereof  feized  in  fee. 
At  a  court  of  probate,  held  at'  Danbury,  &c. 

the 


COUNTY  or  FAIRFIELD,  AUGUST  TERM.  101 

the  appellant  was  duly  appointed  adminiftrator  "7786! 
on  the  eftate  of  faid  Burry  he  having  died  in- 
teflate.  And  at  a  court  of  probate,  held  at  Gold's 
faid  Danbury,  on  the  igth  day  of  January, 
A.  D.  1786,  an  inventory,  made  in  due  form 
of  law,  was  by  the  appellant  exhibited  to  faid 
court;  and  the  appellant,  on  fuch  exhibition, 
did  pray  faid  court  to  admit  proper  proof  of 
the  fame,  and  on  fuch  proof,  to  approve  and 
record  faid  inventory ;  and  the  faid  court  did 
refufe  to  admit  proof  of  faid  inventory,  and  did 
di (approve  thereof. 

Mr.  Ingerfol  and  Mr.  Rowland  replied, — 
That  faid  appeal  ought  to  be  difmiffed  ;  be- 
caufe  all  faid  lands  mentioned  and  contained 
in  faid  inventory,  were  by  the  inteftate,  during 
his  life,  granted  and  conveyed  to  the  appellees, 
by  deed  of  bargain  and  /ale,  figned,  iealed1, 
delivered,  and  duly  acknowledged  before'pro- 
per  authority,  dated  the  7th  day  of  February., 
A*  D.  1780,  and  during  the  life  of  the  intef- 
tate was  recorded  according  to  law  ;  by  force 
whereof  faid  appellees  became  feized  in  fee  of 
all  faid  land ;  and  being  fo  feized,  {till  conti- 
nue to  be  fo  feized  thereof:  And  that,  at  the 
time  of  the  death  of  faid  Hezekiah  Burr,  he 
was  not  feized  or  poflerfed  in  fee  of  faid  Ian d, 
and  had  not  any  intereft  therein;  wherefore,  , 
the  fame  could  not  be  inventoried  as  his  eftate- 
And  that  the  appellees  were,  by  the  Judge  of 
Probate,  duly  notified  to  appear,  and  mew 
reafon  why  faid  inventory  mould  not  be  ac- 
cepted: And  faid  appellees  appeared  before 
faid  Judge,  and  claimed  faid  land,  at  the  fame 
time  faid  inventory  was  produced  and  offered 
for  acceptance;  and  on  exhibiting  faid  deed, 
and  reading  the  fame  to  faid  Judge  of  Probate, 
he  refufed  to  approve  of  faid  inventory,  and 
did  difapprove  thereof. 

The 


lot  COUNTY  OF  FAIHFIELD,  AUGUST  TERM. 

The  appellant  rejoined,  that  the  inteilatc, 
at  the  time  of  executing  laid  deed,  was  of  im- 
Gold's  found  mind,  and  incapable  of  making  any  con- 
caie.  tratl;  and  therefore  laid  deed  is  void  in  law: 
And  the  appellant,  at  the  time  of  exhibiting 
faixl  inventory,  offered  to  prove  to  faid  court, 
that  the  inteftate,  at  the  time  of  cxecuring  and 
delivering  faid  deed,  was  of  unlbund  mind  and 
memory,  and  for  want  of  underftanding,  inca* 
pable  of  making  any  contract  or  bargain  ;  and 
the  faid  Judge  refufed  to  admit  any  fuch  proof. 

To  this,  there  was  a  demurrer,  and  joinder 
in  demurrer. 

The  exception  was,  that  the  court  of  pro- 
bate ought  not  to  accept  or  approve  of  an  in- 
ventory, when  it  appears  upon  record,  that  the 
real  eftate  fo  inventoried  is  claimed,  and  the 
title  veiled  in  fome  other  perfon.  The  admi- 
niftrator had  fully  discharged  his  duty,  when 
he  exhibited  his  inventory  to  the  court  of  pro- 
bate j  and  whether  accepted  or  refufed,  the 
administrator  cannot  afterwards  be  liable. 

Mr.   Bcneditt    and    Mr.   Whit  lie  fey,    on  the 

other  fide. The  adminiftrator  being  under 

oath  to  a  faithful  difcharge  of  his  duty,  is  fup- 
pofed  to  know  what  is  the  proper  eftate  of  the 
deceafed  to  be  inventoried.  The  doings  of 
the  court  of  probate  cannot  affect  the  title ; 
therefore,  no  one  is  injured  by  having  eftate 
inventoried  which  he  may  claim.  The  admi- 
niftrator ought  to  be  careful  to  inventory  the 
whole  eftate  of  the  inteftate,  for  his  own  fe~ 
curity  againft  the  creditors,  and  to  fave  his 
bond,  as  well  as  to  prevent  the  heirs  (if  any) 
from  recovering  judgement  in  their  own  right, 
of  the  eftate,  and  thereby  exclude  it  from  the 
hands  of  the  adminiftrator. 

The  decree  of  the  court  of  probate  reverfed. 
ind, 

BY  THE  WHOLE  COURT.      •    •       It  W3S    the 

duty 


COUNTY  OF  FAIRFIELD,  At  OUST  TERM, 

duty  of  the  adminiftrator  to  exhibit  an  in- 
ventory  of  all  the  eftate,  real  and  perfonal,  == 
that  he  had  reafon  to  fuppofe  belonged  to  the  Gold's 
inteftate  :  And  if  any  part  of  faid  eftate  is 
claimed  by  any  other  perfon,  the  parties  have 
right  to  try  the  title  at  common  law,  and 
cannot  be  concluded  by  the  judgement  of  a 
court  of  probate.  In  cafe  the  eftate  belonged 
to  the  inteftate,  the  adminiftrator  could  not 
profecute  his  claim,  or  apply  the  property  for 
the  payment  of  debts  (if  neceffary)  until  it  was 
inventoried.  To  inventory  the  eftate  here  ob- 
jecleB  to,  might  be  neceffary  for  the  admini- 
ftrator, to  comply  with  his  duty  and  truft,  and 
could  be  prejudicial  to  no  one  elfe ;  the  inven- 
tory he  offered,  ought  therefore  to  have  beer, 
received,  and  the  court  of  probate  erred  in 
rejecting  it. 


COOLLY  againft  SAN  FORD. 

ACTION  on  mutual  promifes  (to  wit)  That 
if  the  plaintiff  acquired  a  good  title  to 
certain  lands,  which   he  had  attached  as  the 
property  of  one   Guyer>    and  fliould  make   a 
good  conveyance  of  faid  lands  in  fee  fimple  to 
the  defendant,  then  the  defendant  engaged  to 
become  obligated  to  the  plaintiff  in  the  fum  of 
•2O9/.    payable    in   a   reafonable  time ;    which 
agreement  was  in  writing,  with  a  penal  claufe. 
The  cafe  was,  that  the  plaintiff  ferved  his 
writ  of  attachment  upon  the  land  mentioned, 
on  the  15111  day  of  May,   1783,  in  the  after- 
noon ;  andonthc22d,  in  the  forenoon,  acopy 
vas  left  with  the  town-clerk,  which  was  not 

attefted 


104  COUNTY  OF  FAIRMELD,  AUGUST  TERM. 

attefted  to  be  a  true  copy  ;  and  there  were  fe- 
veral  variations  between  that  and  the  one  left 
Cooley      in  fervice,  and  alfo  between  the  return  on  that 

*Sai»fl      and  on  the   original  writ :     The  boundary  on 
oanlord.  r  i  i    r     -i      i  •  i-«-  * 

one  hcle  was  delcnbed  in  a  different  manner. 

After  the  fervice  of  this  attachment  on  the 
lands,  and  before  the  copy  was  left  with  the 
town-clerk,  the  defendant,  Sanford,  knowing 
thereof,  purchafcd  the  land  of  Guyer,  the 
debtor,  and  received  a  deed  of  bargain  and 
fale,  dated  the  2  id  day  of  May,  1783,  and 
recorded  the  fame  day. 

On  the  nth  day  of  Anguil,  1783,  the  agree- 
ment was  made  between  the  plaintiff  and  de- 
fendant. The  plaintiff  afterwards  recovered 
judgement  againft  Guyer,  had  execution,  and 
levied  on  the  land  in  legal  form.  The  plain- 
tiff then  tendered  to  the  defendant  an  ample 
deed  of  the  land,  and  demanded  the  obligation 
for  2Og/.  but  the  defendant  refufed. 

This  aclion  being  brought,  and  iffue  joined 
to  the  court,  the  only  queftion  was,  whether 
Cooley,  under  all  the  circumftances,  had  ac- 
quired a  good  title  to  the  land,  fo  as  to  be  able 
to  convey,  agreeably  to  the  tenor  of  the  agree- 
ment. 

Mr.  Benedift,  and  Mr.  Ingerfol,  for  the  de- 
fendant.— There  ought  to  have  been  the  fame 
-kind  of  atteftation  to  the  copy  left  with  the 
town-clerk,  as  to  the  copy  left  with  the  party 
in  fervice  ;  and  if  not  the  fame  literal  exacineis 
throughout,  yet  there  ought  to  be  the  moft  cri- 
tical exa&nefs  in  the  defcription  of  the  lands 
taken,  otherwife  they  are  not  identified,  and 
the  copy  fo  left  can  anfwer  no  purpofe  but  to 
miflead  :  In  the  prefent  cafe,  there  being  no 
attefted  copy  left  with  the  town-clerk,  and  the 
pretended  copy  fo  left,  being  effemially  vari- 
ant from  the  original,  and  from  the  one  left  in 

fervice 


COUKTY  OF   ^AIRFIELD,  AUGUST 

fervice  with  the  party,  it  could  create  no  liert 
on  tne  land ;  therefore,  the  fubfequent  pur- 
chafe  by  Sanford  has  given  him  an  ample  title* 

Mr.  'Chancey  and  Mr.  Sillifiian,  for  the  plain- 
tiff.— The  law  requires  no  more  than  a  certi- 
ficate, or  defcription  of  the  eftate  taken,  to  be 
left  with  the  town-clerk.  The  words  of  the 
flatute  are,  "  When  any  real  eftate  is  taken, 
c<  the  officer  ferving  the  writ  fhall  lei:ve  a  true 
"  and  attefted  copy  thereof,  and  a  defcription 
"  of  the  eftate  taken,  at  the  town-clerk's  office, 
"  in  the  town  where  the  eftate  lies ;  and  until 
**  the  fervice  is  completed,  the  eftate  fo  at- 
"  tached  fhall  not  be  held  by  fuch  attachment, 
"  againft  any  other  creditor  or  bona-fidc  pur- 
"  chafer.'*  The  objcd  of  the  law  can  be  no 
more  than  to  give  notice  to  the  world  of  the 
Utn  that  is  on  the  land:  This  purpofe  was  ful- 
ly anfwered  in  the  prefent  cafe,  by  the  copy 
that  was  left ;  and  the  land  was  fo  far  defcribed, 
that  no  miftake  eould  have  happened  in  regard 
to  it ;  the  officer,  therefore,  has  fubftantially 
performed  his  fervice. 

The  deed  from  Guycr  to  Sanford,  was  ob- 
tained under  fuch  circumftances,  that  the  tranf- 
aftion  contains  in  it  a  fraud :  Sanford  was  ac- 
quainted with  the  circumftances  ;  he  undoubt- 
edly defigned  to  defeat  Cooky  of  his  hold  upon 
the  land ;  he  therefore  took  it  in  his  own 
wrong,  which  cannot  legally  operate  to  his  be- 
nefit. 

Judgement  was  rendered  for  the  plaintiff, 


40 


Cooley 


San  ford, 


o 


The 


io5 


COUNTY  OF  FAIRFIZLD,  Aueusx  TERM. 


1786. 


crime  of 
pc  jiry  and 
forgery. 


The  STATE  againjl  SAMUEL  LOCKWOOD,  3^. 

INFORMATION  for  perjury.— Mr.  Daven- 
port^ of  counfel  for  the  priioner,  objected 
to  the  jurisdiction :  He  urged,  that  the  court 
of  common  pleas  is  the  only  court  -•  "which  by 
law  can  take  cognizance  of  the  crime  of  per- 
jury :  That  by  high  crimes  and  mifdemeanors, 
mentioned  in  the  flatute,  is  intended  only  fuch 
high  offences  as  have  no  exprefs  punifhment  by 
law  annexed  ;  and  as  the  ftatute  has  afcertained 
punifhment  for  perjury,  which  does  not 
extend  to  life,  limb,  or  baniihment,  it  cannot 
be  cognizable  by  the  fuperior  court. 

Judge  ELLSWORTH  o.bferved,  That  in  a  cafe 
of  forgery  at  Windham,  the  fame  exception 
was  taken,,  and  over-ruled  by  the  court :  And, 

THE  COURT  held,  that  they  might  take  cog- 
uizancc  of  the  crime  of  perjury. 


Ademnrrcr 
to  a  dccl  i  ra- 
tion, con- 
ta:ning  a  re- 
cital of  the 
obligation 
on  which  the 
fuicis  found- 
ed, is  ill,  for 
any  allega- 
tion of  vari- 
ance j  the 
advantage 
should   be 
taken  by 


<>•»  oycr,  or 
demur  er  to 
evidence. 


DAUCHY  again/I  SMITH  and  OLMSTED. 

THIS  was  an  action  of  debt  on  bond  ;   the 
declaration  in  common  form. 
Mr.  Ingerfol  prayed  oyer  of  the  bond,  which 
he  recited  at  large  in  his  plea,  and  concluded 
by  demurring  to  the  declaration. 

The  bond  appeared  to  have  been  taken  to 
the  plaintiff,  in  the  capacity  of  conjlablc  of  the 
town  of  Ridgefield.  It  was  conditioned  that 
Smith ,  one  of  the  obligors,  fliould  appear  be- 
fore the  court  of  common  pleas,  at  Fairfield, 
on  the  third  Tuefday  of  April,  1784,  anfwer 
to  an  action,  in  favour  of  Jama  Sturgcs,  againft 

him 


COUNTY  OF  FAIRFIEJ.D,  AUGUST  TERM.  107 

him,  plead  in  cuftody  of  the   court,  and  not 
depart  without  licence. 

Mr.  Ingerfol  took  two  exceptions  under  the     Dauchy 
demurrer  :- 

1.  That  the  bond  being  taken  by  an  officer 
in  his  official  capacity,  the  condition  ought  to 
have  been  exprefled  in  the   declaration  ;  for 
otherwife   it  does  not  appear  but  that  it  was 
taken  for  eafe  and  favour,  which  would  be  il- 
legal.    Although  it  does  not  appear  upon  the 
face  of  the  declaration  that  the  bond  was  taken 
to  an  officer,  yet,  by  inferting  it  in   the  plea, 
the  whole  becomes  parcel  of  the  record;  and 
the  advantage  may  in  this  manner  be  as  well 
taken  under  a  demurrer  as  by  pleading  a  vari- 
ance. 

2.  The  condition  of  the  bond  is  unwarrant- 
able :    For  it  is,  that  Smith  fhall  appear  and 
plead  in  cuftody :  That  he  mall  fuffer  imprifon- 
ment  at  all  events;  which  defeats  the  very  de- 
fign  of  bail. 

BY  THE  WHOLE  COURT. For  ought  thav 

appears  from  the  declaration,  a  good  and  fuffi- 
cient  bond  is  declared  upon,  and  well  defcribed ; 
and  if  the  defendants  would  avail  themfelves  of 
any  variance  between  the  bond  declared  upon 
and  that  mown  upon  oyer,  they  mould  have 
taken  advantage  of  it  by  plea  in  abatement,  or 
demurrer  to  the  evidence  j  the  declaration, 
therefore,  adjudged  fufficient. 

Note, — This  adjudication  is  oppofed  to  the  Eng- 
lifJi  practice — vide  2.  Wilfon's-  Reports,  339, 
Turner  vs.  Vaughan. 


O  2  NORTHROP 


io8  COUNTY  of  Nsw-HAViN,  AUGUST  TERM. 

NORTHROP  againft  BRUSH  and  ISAACS. 


iF*juftice  ""'HIS  "was  an  a&ion  on  the  ftatute  againft 

3,fpse*cct  X     fecret  affaults,  wherein  it  is  enafted,  — 

eenify  in  a  "  That  if  any  perfon  mall  break  the  peace,  by 

emetine  o-  (e  r            *        ff     ,   .                     .                               •*                   / 

verforafe-  lecretly  aliaulting,  beating,  maiming,  wound- 


ing     or  hurting  another,  the  perfon  fo   af- 

thuthe  u  r  i  •  i- 

complain-         laulted  and  injured,  making  application  and 
ant  showed    «  complaining  to  the  next  affiftant  or  iuftice  of 

his  wounds,  r  •         ,  •  J 

and  made         the  peace,  mowing  him  what  hurt  or  wounds 

flairY^*  "  ^ie  ^as  rece^vec^  thereby;  fuch  affiftant  or  j  uf- 
anat  erof  "  tice  fliall  forthwith  grant  out  a  writ  to  the  ihe- 
r<  riff  of  the  county,  or  his  deputy,  or  conaable 
"  of  the  town  where  fuch  affault  (hall  be  made, 
"  -commanding  them,  or  either  of  them,  to 
«{  arreft  and  bring  before  him  fuch  perfon  fo 
."  affaulting,  to  anfwer  fuch  complaint;  who, 

vrevebe'oin-  "  uPon  oatn  Demg  made  againft  him  of  fuch 
TiL  the  "  aflault,  and  of  the  wounds  or  bruifes  there- 
"  ^  received  by  the  perfon  fo  alfaulted  and 
"  beaten,  fliall  be  bound  in  a  fufficient  bond, 
"  &c.J> 

The  complaint  was,  that  the  defendant, 
Bru/h>  invited  Northrop  to  the  coffee-houfe,  in 
New-Haven,  into  a  private  room,  under  the 
pretence  of  bufmefs,  and  did  there  aflault  the 
plaintiff  with  loaded  piftols,  &c.  That  the 
other  defendant,  Ifaacs>  came  into  the  room, 
and  did  combine  with  JSrii/h;  and  that  they 
did  further  aflault  and  beat  the  plaintiff,  no 
other  perfon  being  prefent. 

The  juftice  who  bound  over  the  defendants 
did  not  certify  that  the  plaintiff  was  admitted 
to  his  oath,  or  had  difcovered  his  wounds. 

And  under  a  general  demurrer  two  excep- 
tions were  taken  : 

i.  That  it  did  not  appear  from  the  procefs 
that  the  plaintiff  ever  charged  the  defendants 

under 


COUNTY  or  NEW-HAVEN,  AUGUST  TERM. 

finder  oath,  with  the  facts  complained  of,  or 

that  he  (hewed  his  wounds  to  the  juftice,  which 

the  ftatute  makes  neceffary  to  fupport  this  kind    Northrop 

of  adion. 

2.  That  the  affault  complained  of  was  not  3ruihJ& 
in  its  nature  fuch  as  is  intended  by  the  ftatute ; 
it  was  committed  in  a  public  place,  and  by  a 
plurality  of  perfons ;   the  plaintiff,  therefore, 
may  have  his  remedy  at  common  law :    But, 

BY  THE  WHOLE  COURT, — The  complaint  is 
fufficient.  As  to  the  firft  exception,  that  the 
complainant  did  not  mow  his  wounds,  and 
make  oath  before  the  juftice  ;  fuch  oath  and 
exhibition  were  proper  evidence  for  the  juftice 
to  proceed  upon,  and  the  prefumption  is,  they 
were  had,  unlefs  there  was  an  admiffion  of  tlu- 
facts  to  render  them  unneceflary  :  It  was  not 
neceffary  for  the  juftice  to  fot  forth  the  evi- 
dence he  proceeded  upon  ;  or  if  it  was,  his  o- 
miflion  to  do  it  fhould  have  been  pleaded  in 
abatement.  The  demurrer  goes  not  to  the 
certainty  or  regularity  of  the  proccfs,  but  to 
the  fufficiency  of  the  complaint. 

As  to  the  fecond  exception,  that  it  was  not 
a  fecret  aflault,  becaufe  committed  by  two  per- 
fons :  Two  perfons  may  commit  an  affault 
jointly ;  and  if  it  is  out  of  the  prefence  or  view 
of  others,  it  is  a  fecret  affault;  and  although 
the  perfon  affaulted  may  proceed  againft  one 
of  them  in  a  common  action  of  trefpafs,  and 
take  the  other  for  a  witnefs,  yet  he  is  not 
obliged  to  purfue  that  method  :  One  of  them 
alone  may  be  inefficient  to  repair  the  damages; 
and  it  may  alfo  be  unfafe  for  him  to  reft  on 
the  teftimony  of  a  perfon  whofe  malignity  had 
induced  him  to  join  in  a  fecret  attack  upon  his 
perfon  ;  and  it  is  for  the  public  peace  and 
fafety,  that  both  the  affailants  fhould  be  com- 
plained of,  that  they  may  be  punilhed  crimi- 

naliter. 


no  COUNTY  OF  NEW-HAVEN,  AUGUST  TERM. 

~~7y^67     naliter.     This  affault,    though    made   by  twp 
— =     perfons,  is  within  the  ftatute  againfl  fecret  af- 

Northrop    fault. 

BuST'&c        N°te- — This  judgement  was  afterwards  affirm- 
cd  in  the  Juprcme  court  of  errors. 


In  an  fi&'on 
fo-falfe  im- 
pr.-fo   ment 
tlic  defen- 
dant uiftifies 
usder ihc 
author  ry  of 
an  inccri:.'r 
court.     Re- 
plication, 
th.it  the 
cour:  had  no 
jariflict  on, 
y  adjudged  m- 
Jufhwient ; 
bee  'life  ;he 
v  n-  of  ju- 
rifrl.ft-O'i 
do.-s  not    p- 
pcar  u  on 
the  face  of 
the  procefs, 
ai  d  i;  is  1 10 
la;e  to  s'lew 
it  by  ma  r  r 
deh  rs  the 


WOOSTER  againfl  PARSONS. 

THIS  was  an  aQion  of  trefpafs  for  falfe  im- 
prifonment. — The  defendant  pleaded  that 
he  instituted  a  fuit  againft  the  plaintiff,  on  a 
promiflbry  note,  before  the  city  court,  in  the 
city  of  Middletown,  and  obtained  judgement 
thereon,  by  default :  That  execution  was  duly 
granted  upon  faid  judgement,  by  virtue  of 
which  the  plaintiff  was  taken  and  imprifoned ; 
which  is  the  fame  and  only  imprifonment  com- 
plained of. 

Replication. — That  faid  note  was  given,  ex- 
ecuted and  delivered  without  the  city  of  Mid- 
dletown :  That  the  caufe  of  aclion,  which  was 
the  foundation  of  faid  judgement,  did  not  arife 
within  the  limits  of  faid  city;  therefore,  faid 
court  had  not  jurildi£tion  of  faid  caufe,  and 
ought  not  to  have  rendered  judgement  and  if- 
fued  execution  thereon. 

On  demurrer  to  this  replication,  judgement 
was  rendered  for  the  defendant,  by  the  whole 
court : — And  by 

DYER,  SHERMAN  and  PITKIN,  Judges. — 
The  plaintiff's  reply  is  infufricient ;  becaufe  it 
is  not  therein  alledged,  that  the  defendant  knew 
that  the  caufe  of  action  arofr  mt  of  the  jurif- 
diclion  of  the  cii\  c^urt :  For  if  tl:e  plaintiff,  in 
the  action  Lefurt  the  city  court,  had  averred  in 

his 


COUNTY  OF  NEW-HAVEN,  AUGUST  TERM.  111 

Ms  declaration,  that  the  caufe  of  aftion  arofe  = 
\mhin  the  jurifdi&ion  of  the  court,  \vhen  he  == 
knew  it  did  not;  it  would,  as  to  him,  have  been  Woofter 
a  procefs  unduly  obtained,  and  aftion  of  falfe  agair.jt 
imprifonmcnt  would  lie  againft  him,  though 
not  againft  the  officer  (Lilly's  Abrid.  6g$.)  If 
it  had  appeared  on  the  face  of  the  procefs  that 
the  caufe  of  aftion  did  arife  out  of  the  jurif- 
diclion  of  the  city  court,  all  the  proceedings 
would  have  been  coram  non  judice,  and  void, 
and  could  have  been  no  juftification  or  ex- 
cufe  for  any  thing  done  under  them;  nor  would 
any  negle6t  to  plead  it,  or  any  conceffion  of  the 
parties  make  it  good.  2.  Modern  Reports^  29. 
In  the  prefent  cafe  it  was  not  alledged,  that 
the  caufe  of  adion  did  arife  within  the  jurif- 
diclion  of  the  city  court,  and  for  that  and 
other  reafons,  the  judgement  has  been  re- 
verfed ;  '*  but  the  prefent  defendant  might  have  *  Ante  %%. 
been  ignorant,  or  miftaken  as  to  the  place 
where  the  caufe  of  aftion  did  arife  ;  and  in 
that  cafe  he  would  not  be  liable  to  this  aclion. 
2.  Wilfon's  Reports^  from  302  to  308. 

LAW,  Chief  Jujlicey  and  ELLSWORTH,  Judge. 
— The  defendant  juftifies  under  an  execution 
from  a  city  court :  The  reply  is,  that  the  caufe 
of  aftion  arofe  without  the  jurifdiclion  of  that 
court;  but  this  doth  not  appear  from  the  face  of 
the  proceedings,  and  it  is  now  too  late  to  mew 
it  by  matter  dehors  the  record.  The  plaintiff 
in  that  aclion  might  be  ignorant  of  the  fa£l,  or 
the  matter  in  its  nature  doubtful ;  and  if  the  de- 
fendant would  fuffer  the  procefs  to  go  on,  and 
not  plead  the  matter  in  abatement,  he  mould  be 
confidered  as  having  waved  the  matter  of  jurif- 
ditlion  entirely,  and  not  allowed  afterwards  to 
draw  it  in  queftion  by  an  aftion  of  falfe  im- 
ifonment.  And  fo  was  Trufcott's  cafe,  i.  Ld. 

laymond,  229,  .in  which  the  former  decifions 

-ere  brought  up,  and  this  point  fettled. 


rtr 


ins  COUNTY  OF  NIW-HAVEN,  AUGUST 

"17867 

SUFFREIN  and  COLEY  againft  PRINDLE, 

Diflinaion  HIS  aftion  was  brought  upon  the  follow- 

iriiet.eitjs       -L     ing  written   promile    (viz.)    "This  ba- 
the duty  or       ((  •,  r        i  t         i  •  i  •  i 

the  defend-        lance  ot  \±L  45.  is  agreed  to  be  paid  in  good 
«« to  give     c  Weft-India  rum,  delivered  in  New-Haven, 

no'ice,  or       «f  T    ,  ,         .  .\ 

the  plaintiff  nave  any  come  to  hand ;  or  if 

to  make  de-  "  none  mould  come,  to  procure  it  at  the  cur- 

mand.  C(  .  -ill-  •  ~   , 

rent  market  price,  and  deliver  it  to  John 
"  Suffrfin  or  William  CoUyy  or  order.  Mr. 
rt  Helmns  or  capt.  Sloan  to  judge  of  the  quality 
c<  and  price  of  the  rum." 

It  was  averred  in  (he  declaration,  that  the 
defendant,  on  the  firft  day  of  January  1783, 
had  good  Weft-India  rum  come  to  hand,  fuffi- 
cient  to  pay  faid  fum,  but  had  not  paid  it. 

The  defendant  pleaded,  that  he  did  not  re- 
ceive any  rum  until  the  loth  day  of  February 
1783,  and  then  only  forty-nine  gallons,  which 
he  delivered  to  the  plain  tiffs,  together  with  fome 
other  articles,  to  the  amount  of  §2.1.  js.  which 
they  received  in  part  payment  of  faid  fum  of 
44/.  45. — That  the  refidue  of  faid  rum  did  not 
come  to  hand  before  the  i£th  day  of  Auguft, 
1783,  at  which  time,  and  at  all  times  fince, 
he  hath  ftood  ready  to  deliver  faid  rum  to  the 
plaintiffs,  or  their  order,  in  New-Haven;  and 
that  he  could  not  find  the1  plaintiffs,  or  any 
perfon  by  them  authorifed  to  receive  faid  rum, 
to  whom  he  could  make  legal  tender;  and  that 
the  plaintiffs  had  never  demanded  the  fame  : 
And  concluded  by  traverfing,  that  on  the  firft 
day  of  January,  1783,  the  defendant  had  good 
Weft-India  rum  come  to  hand  fufficient  to 
pay  faid  debt. 

To  this  there  was  a  demurrer,  and  judge- 
ment for  the  plaintiffs  :  For, 

BY  THE  WHOLE  COURT. — The  plea  amounts 
only  to  a  traverfe  of  the  defendant's  having 

rum 


COUNTY  or  NEW-HAVEN,  AUGUST  TERM. 

rum  come  to  hand  in  January,  1783,  fufficient 
to  pay  the  debt,  which  is  an  immaterial  fact; 
if  his  own  did  not  feafonably  arrive,  he  was, 
by  the  terms  of  the  contract,  to  procure  other 
rum  :  So  that  the  plea  is  ill,  and  judgement 
muft  be  for  the  plaintiffs,  if  the  declaration  is 
good:  To  which  only  it  is  objected,  that  the 
plaintiffs  alledged  no  demand;  but  this  was 
not  neceflary  ;  they  had  right  of  aclion  with- 
out any  demand,  after  waiting  a  reafonable 
time  for  the  defendant's  rum  to  arrive,  or 
other  rum  to  be  procured,  and  not  being  no- 
tified that  it  was  ready;  it  was  the  defendant's 
duty  to  give  notice,  and  there  was  no  lien  on 
the  plaintiffs  to  make  demand. 


113 


SuftVein, 

&c. 

agaixjt 
Prindle. 


BURROWS  again/I  FITCH. 

THIS  action  was  againft  the  fheriff  of  New- 
Haven  county,  for  the  neglect  of  his  de- 
puty in'not  levying  and  returning  an  execution 
which  iflued  on  a  judgement  of  the  fuperior 
court,  holden  in  the  county  of  Fairfield  The 
action  was  upon  the  ftatute  regulating  fheriffs, 
in  which  it  is  enacted,  "  That  if  fuch  fheriff  or 
"  conftable  mall  not  execute  the  writ,  or  mail 
"  neglect  to  make  return  thereof,  or  mall  make 
"  falfe  or  undue  return  ;  on  complaint  thereof 
"  made  to  the  court  or  juftice  to  which  it  was 
"  made  returnable,  the  court  or  juftice  may 
K  enquire  thereof,  by  the  evidence  produced, 
'*  and  if  he  be  found  in  default,  the  court  or 
"  juftice  may  fet  a  fuitable  fine  upon  him,  and 
"  award  damages  to  the  party  aggrieved." 

On  demurrer,  judgement  was  for  the  plain- 
'<iff.  And,  ' 

P  BY 


the  ft.T 


sheriff  fof 
notteturn- 
ing  a  n  cxe- 
CUM'O  '  iflu- 
in^  fr  m  he 
fuprrior 
roii'$,  may- 
be bronghc 
i'1    nv  conn- 
'7  v  he  r  ei- 
ther parry 
threl's.  -whe- 
ther t1  e  ori- 
ginalju  gc- 
me  t  vs 
rerdeied 
there  or  not/ 


ii4  COUNTY  or  NEW-HAVEN,  AUGUST  TERM. 

BY   THE  WHOLE    COURT. — The  only   ex- 
ception  to  the  declaration  is,  that  the  ftatute 
Burrows     on  which  this  aclion   is  brought  requires  that 
cgainji     tnc  complaint  fhould  be  made  to  the  fame  court 
uc  '     that  granted  the  execution  on  which,  &c.   and 
therefore  this  aclion  fhould  have  been  brought 
in  the   county   of  Fairfi-eld,    and   not   in   the 
county  of  New-Haven.     The  court  is  of  opi- 
nion, that   this  court  is  the  fame   within    the 
meaning  of  the  ftatute,  fitting  in  any  county  in 
the  ftate  ;  and  therefore  fuch  action  may  be 
maintained  in  the  county  where  either  party 
dwells.     The  declaration  is  therefore  fufficient. 


WILFORD  and,  Others  again/I  GRANT. 

judgement     "DETER  GRANT,    and   Eleanor  ''his  wife, 

JL  - 


in  JL  -  brought  their  aclion  of  trefpafs  againft 
Jofe-ph  Wilford,  Ifaac  Smith,  John  Blackpnc, 
2,dy  Timothy  Black/lone,  Noadiah  Rogers,  and 
.Samuel  Hoadley,]\in.  for  an  affault  and  battery 
committed  upon  faid  Eleanor.  At  the  time  of 
trial,  Wilford  and  the  two  Black/lones  made  de- 
fault. The  other  defendants  appeared  and 
pleaded  the  general  iffue,  on  which  the  jury 
found  a  verdict  for  the  plaintiffs,  and  >j^l.  da- 
mages; and  judgement  was  rendered  againft 
all  the  defendants. 

The  defendants  then  brought  this  writ  of 
error  de  recordo  quod  coram  nobis  rcjidet,  align- 
ing the  following  errors  in  faft: 

i.  That  Timothy  and  John  Black/lone  were, 

-  at  the  time  of  bringing  the  fuit,  and  at  the  time 

of  rendering  judgement,  minors  under  the  age 

of  twenty-one  years,  and  totally  incapable  of 

appearing, 


COUNTY  OF  NEW-.HAVEM,  AUGUST  TERM.  115 

appearing,  anfwering  or  defending  in  faid  fuit     "j^gg^ 
in  any  other  way  than  by  guardians  ;  and  that     ===== 
the  plaintiffs  did  not  cite  any  perfon  to  appear    Wilford, 
as  guardian 'to  faid  minors,  nor  was  any  perfon 
ever  appointed  by  the  court. 

2.  That  the  court  did  proceed  to  render  one 
entire  judgement  againft  all  the  defendants  in 
faid  fuit  for  entire  damages ;  whereas  faid  Ti~ 
motky-and  John  have  never  had  a  day  in  court, 
or  an  opportunity,  to  put  in  any  plea,  or  to  be 
heard  on  faid  matters ;  and  no  damages  ought 
to  have  been  given  or  affeffed  againft  them. 

The  defendant  in  error  pleaded  in  abatement 
to  the  writ ;  that  faid  judgement  was  recovered 
againft  the  plaintiffs,  in  error  for  a  trefpafs 
committed  on  faid  Eleanor,  who  has  fmce  de- 
ceafed,  me  then  being  wife  of  the  defendant  in 
error;  therefore,  the  prefent  defendant  cannot 
be  confidered  as  party  or  privy  to  faid  aftion; 
fo  as  to  be  heard  on  the  merits  thereof,  if  faid 
judgement  mould  be  reverled ;  and  that  exe- 
cution hath  been  taken  out  on  faid  judgement, 
and  duly  levied  on  land,  and  faid  lands  duly 
appraifed  and  fet  off. 

The  plaintiffs  in  error  replied, — That  there 
is  not  any  executor  or  adminiftrator  of  the 
faid  Eleanor  deceafed;  but  that  the  faid  Eleanor' 
left  fundry  heirs,  each  of  whom  are  minors  un- 
der the  age  of  twenty-one  years ;  and  that  the 
defendant  in  error  is  the  father  and  natural 
guardian  to  each  and  every  of  the  heirs  of  the 
faid  deceafed,  and  has  been  duly  fummorsed 
and  notified  to  appear  and  defend  in  this  cafe. 

The  replication  was  adjudged  fumcient,  and 
the  aftion  ordered  to  proceed  j  and  then  on  the 
plea,  in  nullo  ejl  erratum,  judgement  was  re- 
verfed  in  part  only. 

BY  THE  WHOLE  COURT. — The  judgement 

complained  of  is  againft  minors  and  adults,  as 

P2  joint 


n6  COUNTY  or  NZW-HAVIN,  AUGUST  TJRRM> 

' 

1786!  J0*n*  trefpaflers ;  minors  are  prefumed  wanting 
55===  in  difcretion  to  manage  their  own  caufes,  or  to 
Wilford,  appoint  and  inftruft  attornics;  guardians  are 
a&c'  there&re  to  be  afligned,  who  {hall  take  care  for 
cfr»nt.  them>  an(*  be  accountable:  In  this  cafe  none 
•were  affigned,  ajid  judgement  went  againft  the 
minors  by  default,  through  the  negleft  of  the 
then  plaintiff  to  inform  the  court  of  their  mi- 
nority, which  he  ought  to  have  done  before  he 
took  judgement  againft  them  by  default  or  oth- 
erwife.  But  the  principal  queftion  is,  can  the 
judgement  be  reverfed  as  to  them,  and  Hand  good 
againft  the  reft  ?  No  reafon  appears  rerum  natZ 
ura,  why  it  mould  be  reverfed  as  to  the  adults 
alfo  :  They  were  fairly  tried  and  convi&ed,  and 
they  might  have  been  taken  alone  at  firft,  or  .the 
plaintiff  might  have  entered  a  nolle profequi  as  to 
the  others ;  and  as  this  recovery  was  for  a  torf, 
no  contribution  could  have  been  compelled,  if 
one  had  been  obliged  to  pay  the  contents  of 
the  execution.  If  a  judgement  muft  be  re- 
verfed as  to  all,  merely  to  give  relief  to  one 
who  may  be  entitled  to  it,  there  will  be  unne- 
cefTary  expence  and  delay  of  juftice,  and  in 
cafes  circumftanced  like  the  prefent,  a  failure 
of  it :  For  the  right  of  aftion  being  merely 
perfonal,  and  the  original  plaintiff  dead,  the 
aftion  cannot  be  commenced  again  de  novo. — 
The  common  law  rules  of  England  are  indeed 
againft  a  reverfal  in  part  only,  in  a  cafe  like 
this,  though  it  is  admitted  in  others  without 
any  apparent  diverfity  of  reafon  :  As  if  an  in- 
fant and  one  of  full  age  join  in  a  fine,  there 
mall  be  a  reverfal  quoad  the  infant  only  ;  fo-  . 
where  judgement  is  erroneous  only  with  regard 
to  cofts,  it  may  be  reverfed  as  to  them,  and 
ftand  good  as  to  the  debt  or  damages;  but  it 
doth  not  appear  that  this  rule  has  been  adopt- 
ed in  practice  here,  fo  as  to  become  authorita- 
tive. 


COUNTY  OF  NEW-HAVEN,  AUGUST  TERM. 

tive.     The  common'' law  of  England  we  are  to 
pay  great  deference  to,  as  being  a  general  fyf-     : 
tem  of  improved  reafon,    and  a  fource  from    Wilfbrd, 
whence  our  principles  of  jurifprudence  have 

been  moftly  drawn :  The  rule,  however,  which     *gainJ* 
i  i  i  i        •  Grant. 

have  not  been  made  our  own  by  adoption,  we 

are  to  examine,  and  fo  far  vary  from  them  as 
they  may  appear  contrary  to  reafon  or  unadapt- 
ed  to  our  local  circumftances,  the  policy  of  our 
law,  or  fimplicity  of  our  practice ;  which,  for 
the  reafons  above  fuggefted,  we  do  in  this  cafe, 
and  reverfc  the  judgment  as  to  the  minors  only. 

This  judgement  was  afterwards  affirmed  in  the 
fuprcme  court  of  errors. 


1786. 


We'.lf  s  & 

his  wife 
agaivjl 
Olcott. 


COUNTY  or  HARTFORD,  SEPT.  TERM. 


WILLIS  and  his  Wife  againjl  OLCOTT. 

ACTION  of  diffeifin, — On  fpecial  plead- 
ings the  cafe  was — That  John  Knowles, 
by  his  laft  will,  dated  the  301!!  day  of  Novem- 
ber, 1753,  among  other  things,  deviled  the, 
lands  in  queftion  to  his  c<  daughter  .Mary, 
"  Kno-wles  t  and  the  heirs  of  her  body  forever." 
Mary  Kno-wles  was  married  in  June,  1762,  to 
Alexander  Chalker,  and  had  iflue  a  daughter, 
Bridget  (wife  of  the  plaintiff)  born  September, 
1764.  The  faid  Mary  having  heirs  born  of 
her  body,  did  alien  the  lands  on  the  6th  day; 
of  June,  1765,  by  a  deed  of  bargain  and  fale, 
executed  by  herfelf  and  hufband;  and  by  feve- 
ral  mefne  conveyances  it  came  regularly  to  the 
defendant. 

On  demurrer, — It  was  contended  that  this 
was  a  limited  eftate,  and  no  more  than  a  life 
eftate  in  Mary  Knowks ;  therefore  fhe  could 
not  alien  the  fee,  but  that  it  defcended  to 
Bridget  Chalker,  the  plaintiff's  wife, 

On  the  other  fide  it  was  urged,  that  this  de- 
vife  created  a  conditional  fee,  and  that  the 
condition  was  performed  when  Mary  had  mar- 
ried and  had  heirs  of  her  body ;  and  that  the 
eftate  then  vefted  in  her,  as  a  fee  fimple  :  That 
the  Englifh  ftatute  of  Wejlminjler,  zd,  \%th 
Edward  i.  entitled  the  Statute  de  donis  Condi- 
tionalibus,  did  never  extend  to  this  country, 
and  hath  never  been  adopted  here  ;  therefore, 
fuch  tenures  ought  not  to  be  conftrued  to  be 
eftates  tail  in  this  ftate. 

BY  THE  COURT. — Uniformity  of  decifion  is 
to  be  preferved.  The  point  in  this  cafe  hath 
been  twice  recently  adjudged,  in  the  cafes  of 
Allen  vs.  Bunce,  and  Devey  vs.  Foot ;  and  on 

the 


COUNTY  OP  HARTFORD,  SIPT.  TERM. 


119 


Welles  & 
bis  wife 
againft 
Okott. 


the  following  principles:    That- the  intent  of       1786. 

the  teftator  was  to  be  purfued,  where  it  did  not     ==- 

interfere  with  the  policy  of  law :  That  the  in- 
tent in  the  prefent  cafe  obvioufly  was  to  create 
an  eftate  tail,  and  not  a  conditional  fee.  A  li- 
mitation in  tail,  fo  far  as  related  to  the  firft 
donee  in  tail,  might  be  for  very  good  reafons ; 
and  it  does  not  interfere  with  the  policy  of  law, 
like  perpetuities,  or  more  than  any  life  eftate  : 
And  that  the  late  ftatute,  admitting  limitations 
in  tail,  as  relative  to  the  firft  donee,  might 
well  be  confidered  as  in  affirmance  of  the 
common  law.  Judgement  was  therefore  for 
the  plaintiffs. 

N.  B.  Judge  PITKIN  excufed  himfelf  from 
judging  in  this  cafe,  bring  related  to  one  of  the 
parties. 


KIBBE  again/I  KIBBE. 

THIS  was  an  a£lion  of  debt,  on  a  judgement 
rendered  by  the  court  of  common  pleas  in 
the  county  of  Berk/hire,  and  commonwealth 
of  Maflachufetts. 

The  defendant  pleaded  in  abatement,  "  That 
"  at  the  time  of  bringing  the  aftion  to  the  court 
"  of  common  pleas,  upon  which  the  judgement 
"  referred  to  in  the  plaintiff's  declaration  was 
,"  rendered,  he,  the  defendant,  was  an  inhabi- 
r<  tant  of  the  town,  of  Somers,  in  the  county 
"  of  Hartford  ;  and  that  the  plaintiff,  in  faid 
"  original  a£lion,  prayed  out  a  certain  pretend- 
"  cd  writ  againft  the  defendant,  in  the  words 
"  following,  to  wit : 

"  Berkfhirc 


12O 


Kibbee 
again/I 
Kibbee. 


COUNTY  OF  HARTFORD,  SEPT.  TZRM. 

"  Berkfhire,  ff. 

<c  The  commonwealth  of  MafTachufetts, 
"  To  James  Kibbc>  of  Somers,  in  the  county 

"  of   Hartford,   and   ftate    of    Connecticut, 

"  hufbandman,  Greeting : 

"  W  E  command  you  that  you  appear  at  our 
"  next  court  of  common  pleas,  to  be  holden  at 
"  Great-Barrington,  within  and  for  our  faid 
"  county  of  Berkfhire,  on  the  third  Tucfday 
"  of  November  next ;  then  and  there  to  an- 
"  fwer  unto  Stephen  Kibbe,  of  Loudon,  in  the 
"  county  aforefaid,  yeoman,  in  a  plea  of  co- 
"  venant  broken,  which  is  at  large  fet  forth  in 
"  the  original  writ;  which  plea  the  faid  Stephen 
"  hath  commenced  againfl  you,  to  be  heard  and 
"  tried  at  the  faid  court ;  and  your  goods  and 
"  eftate  are  attached,  to  the  value  of  two  hun- 
"  dred  pounds,  being  for  fecurity  to  fatisfy  the 
"judgement  which  the  faid  Stephen  may  reco- 
Cf  ver  upon  the  aforefaid  trial.  Fail  not  of  ap- 
"  pearance,  at  your  peril.  Witnefs,  WILLI- 
"  AM  WHITJNG,  Efq.  at  Great-Barrington, 
"  the  28th  day  of  October,  in  the  year  of  our 
s<  Lord  1784. 

"H«NRY  WMS.  DWIGHT,  Clerk." 

That  the  plaintiff  having  prayed  out  faid  pre- 
tended writ,  he  caufed  the  fame  to  be  left,  or 
a  copy  thereof,  at  the  dwelling-houfe  of  him, 
the  defendant,  in  faid  Somers,  by  fome  perfon 
unknown  to  the  defendant:  That  the  aforefaid 
writ,  or  copy  thereof,  was  the  only  notice  or 
fummon  ever  given  or  made  to  the  defendant, 
to  appear  and  anfwer ;  and  faid  judgement  was 
proceeded  to,  and  rendered  againft  the  defen- 
dant, upon  the  ground  and  authority  of  faid 
•writ,  iflued  and  left  at  the  defendant's  houfe,  in 
faid  Somers,  as  aforefaid,  and  in  no  other  way 
or  manner  •whatever. 

Whereupon 


COUNTY  OF  HARTFOED,  SEPT.  TERM.  121 

Whereupon  the  defendant  fays,  That  he  had     "7^867 
not  legal  notice,  nor  had  faid  court  of  common     = 
pleas  any  authority  to  iSue  any  procefs  againft 
the  defendant,  or  proceed  to  render  judgement    £& 
thereon,  upon  fuch  pretended  writ,  left  at  the 
defendant's  houfe,  in  faid  Somers,  as  aforefaid; 
nor  was  the  defendant  holden  by  law  to  make 
any  anfwer  thereto;  and  faid  judgement  is  ill 
founded  and  void,  and  no  fuit  or  aftion  can  or 
ought  to  be  maintained  thereon  j  all  which  the 
defendant  is  ready  to  verify,  &c. 

The  plaintiff  replied,  That  he  brought  his 
aclion  againft  the  defendant  before  faid  court 
of  common  pleas,  in  the  words  following,  to 
wit : 

"  Berkfhire  ff. 

"  Commonwealth  of  Maffachufetts, 

"  To  the  fheriff  of  our  county  of  Berkfhire, 

"  his  under  fheriff  or  deputy,  Greeting : 

"  W  E  command  you  to  attach  the  goods  or 

"  eftate  of  James   Kibbee,   of  Somers,   in  the 

"  county  of  Hartford,  and  ftate  of  Conne£U- 

"  cut,  hufbandman,  to  the  value  of  2OO/. — and 

"  for  want  thereof  take  the  body  of  the  faid 

"  jfamesy  if  he  may  be  found  in  your  precinct, 

*c  and  him  fafely  keep,  fo  that  you  have  him 

**  before  our  jullices  of  our  court  of  common 

"  pleas,  next  to  be  holden  at  Great-Barring- 

cc  ton,  within  and  for  our  faid  county  of  Berk- 

w  mire,  on  the  third   Tuefday  of  November 

f<  next ;  then  and  there  in  our  faid  court  to  an- 

c<  fwer   to  Stephen  Kibbee,   of  Loudon,  in  our 

*'  faid  county,  yeoman,  in  a  plea  of  covenant 

"  broken ;    and  whereupon   the   faid    Stephen 

c<<  complains  for  this  (to  -wit:)  That  whereas  the 

"  faid  James>  at  Somers  aforefaid  (to  wit)  at 

"  Great-Barrington  aforefaid,  on  the  23d  day 

"  of  February,  in  the  year  of  our  Lord,   1763, 

"  by  his  deed  pole,    the  date  whereof  was  the 

Q  «  day 


122 


1786. 


COUN-TY  or  HARTFORD,  SEPT.  TERM. 

"  day  and  year  laft  aforcfaid ;  which  deed  was 
:r  well  executed  by  the  faid  James,  fealed  with 
"  his  feal,  ready  in  court  to  be  produced,  .for 
"  and  in  confideration  of  the  fum  of  64!.  law- 
"  ful  money,  by  the  laid  Stephen  well  and  tru- 
r<  ly  paid  to  the  faid  James,  did  give,  grant, 
"  fell,  and  confirm  to  the  faid  Stephen,  his -heirs 
"  and  afligns  forever,  a  certain  piece  or  lot  of 
"  land,  lying  and  being  in  Tyringham,  in  our 
*'  faid  county  of  Berkfhire,  containing  fcventy 
"  acres,  be  the  fame  more  or  lefs,  which  was 
IC  laid  out  on  Samuel  Levemore's  -right,  and  is 
nber  194,  and  bounds,  Sec.  Alfo,  one 
"  other  tract  or  lot  of  land,  in  faid  Tyringham, 
"  containing  iixty-two  and  an  half  acres,  be 
"  the  fame  more  or  lefs,  which  was  laid  out  on 
"  William  White's  right,  and  is  number  142. 
"  Alfo,  a  right  in  place  of  commonancy,-  which 
"  is  known  by  the  name  of  the  Equivalent  Land. 
"  Said  right  did  belong  to  Samuel  Levemcre,  a- 
"  forefaid,  and  faid  lots  were  not  then  laid  out. 
"  To  have  and  to  hold  to  the  faid  Stephen,  his 
Cf  heirs  and  afligns  forever:  And  the  faid  James 
"  by  his  deed  aforefaid,  did  covenant  with  faid 
"  Stephen,  his  heirs  and  affigns,  that  at  and  un- 
"  til  the  enfealing  thereof,  he  was  well  feized 
<c  of  the  premifes,  as  a  good  indefeafible  eftate 
"  in  fee  fimple ;  and  that  he  had  good  right 
"  and  lawful  authority  to  bargain  and  fell  the 
"  fame  in  manner  and  form  aforefaid  ;  and  that 
"  the  fame  were  free  and  clear  of  all  incum- 
"  brances  whatever.  And  furthermore,  the 
"  faid  James  did  then  and  there,  by  his  deed 
"  aforefaid,  covenant  with  the  faid  Stephen,  -his 
<c  heirs  and  afligns,  to  warrant  and  defend  the 
"  above  granted  premifes  to  him  the  faid 
"  Stephen,  his  heirs  and  afligns,  againfl  all 
"  claims  and  demands  whatever.  And  now 
"  the  faid  Stephen  in  fact  fays,  that  the  land 

"  aforefaid 


COUNTY  OF  HARTFORD,  SEPT.  TERM.  123 

"  aforefaid  was  under  incumbrances,  and  that      "jTgg^ 

"  the  faid  James  hath  not  warranted,    fecured     = 

"  and  defended  the  abovefaid  premifes  to  him      Kibbce 

"  the  faid  Stephen,   againft  all  claims  and  de-   ; 

"  mands  whatever:  And   the  faid  James,  his 

"  covenants     aforefaid    hath    not     kept,     but 

"  broken   to  the  damage  of   the  faid   Stephen 

"  (as  he   faith)  the  fum   of  2OO/. — which  fhall 

"  then  and  there  be  made  to  appear,  with  other 

<f  due  damages.     And  have  you  there  this  writ, 

"  with  your  doings  therein.     Witnefs,  W  i  L  L  i- 

"  AM    WHITING,    Efq.    at   Great-Barrington, 

"  this  28th  day  of  October,  in  the  year  of  our 

"  Lord,   1784. 

"  H.  W.  D.  Clerk." 

Which  faid  writ  was  duly  ferved  on  the  de- 
fendant, by  Solomon  Jackfon,  Iheriff's  deputy 
for  faid  county  of  Berkfhire,  and  by  him  duly 
returned  to  faid  court,  with  his  indorfement 

thereon,  in  the  words  following,  viz. 

"  Berkfhire  ff.  October  29,  1784:  Then,,  by 
"  virtue  of  the  within  writ,  I  attached  a  hand- 
"  kerchief,  fhewn  to  me  by  the  plaintiff's  at- 
"  torney,  to  be  the  eftate  of  the  within  named 
"  James  Kibbee-,  and  have  feafonably  fent  him  A 
"  a  fummorr,  for  his  appearance  at  the  time  and 
ct  place  within  mentioned,  as  the  law  directs." 

That  the  faid  fheriff's  deputy,  agreeable  to 
his  faid  indorfement,  fent  to  the  defendant  faid 
fummon,  mentioned  and  recited  in  the  defen- 
dant's plea,  by  the  hands  of  Nathaniel  Wood, 
of  Loudon,  in  faid  Berkfhire  county,  and 
AJahcl  Adams,  of  Suffielcl,  in  faid  Hartford 
county,  who  left  the  fame  with  the  defendant, 
and  duly  made  oath  to  the,  fame  before  Elipha- 
let  Terry,  Efq.  Jufticeof  the  Peace  for  Hart- 
ford county,  who  made  a  certificate  thereof  ; 

in  thefe  words,  viz. "  Hartford  county  fT. 

"  Enfield,  November  2d.  1784;  perfonally  ap- 
Q  2  "  peared 


124 


Kibbe 

againft 
Kibbe. 


COUNTY  OF  HARTFORD,  SEPT.  TERW. 

"  pearcd  Nathaniel  Wood,  of  Loudon,  in  the 
"  county  of  Berkfhire,  and  commonwealth  of 
'  Maffachufetts,  and  Afahel  Adams,  of  Suffield, 
"  in  faid  Hartford  county,  and  made  folemn 
"  oath,  that  they  have  this  day  left  a  fummon 
"  at  the  dwelling-houfe  of  James  Kibbee,  of 
"  Somers,  in  faid  Hartford  county,  for  his  ap- 
"  pearance  at  the  court  of  common  pleas,  at 
"  Great-Barrington,  in  and  for  the  county  of 
"  Berkfhire,  in  faid  commonwealth  of  Malfa- 
*c  chufetts,  on  the  third  Tuefday  of  November 
*c  inftant;  then  and  there  to  make  anfwer  to 
"  Stephen  Kibbeey  of  faid  Loudon,  in  a  plea  of 

"  covenant  broken." Which  writ,  with  the 

faid  deputy  fheriff's  indorfement  thereon,  and 
with  faid  certificate  made  by  faid  Eliphalet  Ter- 
ry, Efq.  were  duly  returned  to  faid  court  of 
common  pleas,  for  faid  county  of  Berkfhire, 
and  faid  court  thereupon  proceeded  to  render 
judgement  in  faid  action,  in  the  words  follow- 
ing, viz. 

"  Berkfhire  ff. — At  a  court  of  common  picas, 
"  begun  and  holden  at  Great-Barrington,  with- 
"  in  and  for  the  county  of  Berkshire,  on  the 
"  third  Tuefday  of  November,  A.  D.  1784. 

"  Stephen  Kibbee,  of  Loudon,  in  the  county 
"  of  Berkfhire,  yeoman,  plaintiff,  againft  James 
"  Kibbee,  of  Somers,  in  the  county  of  Hartford, 
"  and  ftate  of  Connecticut,  hufbandman,  defen- 
"  dant,  in  a  plea  of  covenant  broken  (rtcit- 
"  ing  the  fubjlanceof  the  declaration.)  The  laid 
"  Stephen  appears  in  court,  by  his  attorney, 
"  Thomas  Ives,  gentleman  ;  and  the  faid  James . 

is  now  three  times  folemnly  called  to  come 

into  court,  but  makes  default  of  appear- 
f(  ance  here :  Whereupon  it  is  adjudged  and 
"  determined  by  the  court,  that  in  this  cafe  the 
"  faid  Stephen  do  recover  agairifl  the  faid  James 
c*  the  fum  of  i^y/.  35.  gel.  lawful  money,  da- 

"  mages, 


«r 


COUNTY  OF  HARTFORD,  SEPT.  TERM. 

"  mages,  and  the  cofts  of  fuit,  taxed  at  i/.  105. 
"  gd.  And  hereof  the  faid  Stephen  may  have 

"  his  execution." All  which,   by  the  files 

and  records  of  faid  court  of  common  pleas, 
ready  in  court  to  be  fhewn,  appears ;  and  all 
which  proceedings  aforefaid  were  conformable 
to  the  laws  and  cuftoms  of  the  faid  common- 
wealth of  Maffachufetts. 

The  defendant  rejoined,  That  faid  writ  was 
no  otherwife  ferved  than  by  leaving  faid  copy 
or  paper,  without  any  indorfement  or  return 
thereon  by  any  one  whatever,  or  any  kind  of 
notice  or  intimation  of  attaching  any  eftate 
whatever,  as  in  his  plea  is  alledged :  Arid 
though  true  it  is  the  faid  Jackjbn,  deputy  fhe- 
riff,  made  return  of  his  attaching  a  handker- 
chief, fhewn  to  him  by  the  plaintiff's  attorney 
to  be  the  eftate  of  the  defendant,  yet  the  de- 
fendant fays  that  he  never  did  in  fact  attach  or 
take  any  of  his  eftate  whatever ;  and  faid  re- 
turn of -faid  officer  is  altogether  falfe  and  feign- 
ed, and  calculated  by  the  plaintiff  and  his  at- 
torney merely  to  procure  and  obtain  the  judge- 
ment aforefaid,  and  of  which  return  and  doings 
of  faid  deputy  fheriff  the  defendant  never  had 
the  lead  notice,  until  the  bringing  of  this  ac- 
tion ;  and  the  defendant  thereupon  fays,  that 
the  proceedings  aforefaid  are  altogether  illegal, 
and  not  conformable  to  or  warranted  by  the 
laws  of  this  ftate  or  any  other. 

And  the  plaintiff  fur-rejoined — That  faid 
paper  left  with  the  defendant  in  fervice,  was  a 
fummon,  iffued  and  figned  by  the  clerk  of  the 
faid  court  of  common  pleas,  for  laid  county  of 
Berkfhire,  for  the  defendant  to  appear  and  an- 
fwer  unto  the  faid  fuit  before  faid  court ;  which 
is  the  ufual  and  common  notice  for  appearance, 
agreeable  to  the  laws,  ufage  and  cuftoms  of  faid 
commonwealth  j  and  that  the  faid  notice,  and 

evidence 


Kibbe 
againft 

Kibbe. 


126  COUNTY  OF  HARTFORD,  SEPT.  TERM. 

^Tg57     evidence  thereof,  and  the  whole  of  faid.procefs, 
_______     was  agreeable  to  faid  laws,  ufages  and  cuftoms. 

Kibbe  To   this  there  was  a  demurrer,  and  joinder 

?  *  in  demurrer;  and  judgement  for   the  defen- 
dant. 

BY  THE  COURT. — It  appears  by  the  plead- 
ings, that  the  defendant  was  an  inhabitant  of 
the  ftate  of  Connecticut,  and  was  not  within 
the  jurifdiclion  of  the  court  of  common  pleas 
for  the  county  of  Berkfhire,  at  the  time  of  the 
pretended  fervice  of  the  writ ;  therefore,  the 
court  had  no  legal  jurifdiclion  of  the  caufe, 
and  fo  no  aclion  ought  to  be  admitted  on  faid 
judgement ;  But  full  credence  ought  to  be 
given  to  judgements  of  the  courts  in  any  of 
the  United  States,  where  both  parties  are  with- 
in the  jurifdiclion  of  fuch  courts  at  the  time  of 
commencing  the  fuit,  and  are  (July  ferved  with 
the  procefs,  and  have  or  might  have  had  a  fair 
trial  of  the  caufe;  all  which,  with  the  original 
caufe  of  aclion,  ought  to  appear  by  the  plaintiff's 
declaration  in  a6Hon  of  debt  on  fuch  judgement. 

Judge  DYER  faid  further, — That  the  origi- 
nal a6tion  was  upon  a  covenant  real,  and  lo- 
cally annexed  where  the  lands  lye  ;  and  the 
judgement  being  by  default,  this  court  never 
could  take  cognizance  of  or  examine  into  the 
juftice  of  the  caufe;  therefore,  cannot  enforce 
the  judgement  on  which  this  aclion  is  brought. 

Note. —  Judge  ELLSWORTH   excufed  himfdf 
from  giving  an  opinion  in  this  cafe,  having  Jor- 
merly  been  of  counfd. 

The  two  preceding  cafes  were  adjudged  the  lajl 
term. 


HART 


CO-U-NTY  or  HARTFORD*  S£PT.  TERM.  127 


HART  again/I  SMITH. 
^  was  a  general  indebitattis  a  flump  fit  y  for 

A,,.,  i  us  af- 

money  had  and  received.  .-_C1S,. 

The  cafe,  from  the   pleadings,  was  this: —  not^ftaii- 

.    .       .  ~  .  •    .         i     •        T  i       r       i     •       ablefvr  mo- 

The  plain tift  being  brigadier-general  of  a-bri-  neyh.;dand 
gade  of  militia,  and  the  defendant  a  colonel  £ecei.ve/* 

°  ,   .  •         i        r      i  i    •       -rr  founded  on 

under  his  command,  received  or  the  plaintiff 
the  fum  of  I5y8/.  in  bills  of  this  ftate,  to  be 
applied  to  public  ufe,  and  to  account.  On  the 
4th  day  of  fan.  1783,  the  defendant  rendered 
an  account  of  the  application  of  the  monies  fo 
received,  and  a  fettlement  was  made  by  the 
parties  ;  the  plaintiff  gave  to  the  defendant  an 

c  11  J  ..u-  miftake,  is 

acquittance  from  all  demands  on  this  account,  fBftainaj,ic, 
and  the  defendant  delivered  to  the  plaintiff  all 
his  vouchers  and  other  papers  relative  to  the 
matter  :  That  by  means  of  a  double  charge 
and  mifentry,  two  miftakes  had  happened  in 
the  fettlement,  againft  the  plaintiff,  to  the  a- 
mount  of  2O2/.  145.  6d. 

On    demurrer,   the  queftion  was,    whether 
this  general  action  of  indebitatus  affumpfit,   is 
fuftainable  after  a  fettlement  and  acquittance. 
Judgement  was  for  the -defendant. 

By  LAW,  Chief  Jujlice,  DYER,   SHERMAN 

and   PITKIN. The  facts  conceded  by  the 

pleadings,  do  not  fupport  this  aclion. It  ap- 
pears by  the  pleadings,  that  the  only  money 
received  by  the  defendant  of  the  plaintiff,  was 
a  fum  of  ftaie  bills,  which  he  received  as  a  pub- 
lic officer,  to  .pay  over  to  the  foldiers  of  his  re- 
giment, for  which  he  was  accountable  ;  and  if 
he  had  failed  of  performing  his  undertaking, 
the-  plaintiff's  legal  and  proper  remedy  would 
have  been  an  action  of  account :  But  the  de- 
fendant having  rendered  his  account  to  the 
plaintiff,  to  his  acceptance,  and  the  fame  hav- 
ing 


